Timothy A. Woodington, Appellant,v.Richard J. Danzig, Secretary, Department of the Navy, Agency.

Equal Employment Opportunity CommissionOct 6, 1999
01985242 (E.E.O.C. Oct. 6, 1999)

01985242

10-06-1999

Timothy A. Woodington, Appellant, v. Richard J. Danzig, Secretary, Department of the Navy, Agency.


Timothy A. Woodington v. Department of the Navy

01985242

October 6, 1999

Timothy A. Woodington, )

Appellant, )

) Appeal No. 01985242

v. ) Agency No. 9700187003

) 9700187816

Richard J. Danzig, )

Secretary, )

Department of the Navy, )

Agency. )

)

DECISION

Appellant timely filed an appeal with this Commission from a final agency

decision (FAD) dated May 26, 1998, in which the agency determined that it

had not breached the settlement agreement (SA) entered into on January

23, 1998. The appeal is accepted in accordance with the provisions of

EEOC Order No. 906.001, as amended.

ISSUE PRESENTED

The issue presented is whether the agency properly determined that it

did not breach the SA entered into on January 23, 1998.

BACKGROUND

The SA provided, in pertinent part, that:

a. The Complainant shall receive 120 days time in grade with pay as if

he sat in for the temporary position, Supervisory Planner and Estimator

(General), WN-4701-07. The payment of the 120 days shall be calculated

for the period beginning 10 December 1995 forward 120 days.

b. The complainant shall be guaranteed the next temporary promotion

to a non-supervisory position (guaranteed at the level of a GS-11 or

equivalent) within a 15 mile radius, which the parties agree include[s]

the Portsmouth site, for which he is qualified. The position shall be

offered to the Complainant within 90 days of this settlement agreement.

The position offered shall last in duration for at least 120 days.

The Complainant agrees that an independent determination shall be made

by Human Resource Office, Norfolk that he is qualified for the temporary

position that shall be offered. The Complainant also agrees that he

shall accept the first position he is offered and [is] deemed qualified

to perform.

c. The Complainant shall also receive 6 months plus one (1) day time in

grade with no pay to the position of Supervisory Planner and Estimator,

WN-4701-07, beginning 1 July 1997.

In a letter, to the agency, dated April 20, 1998, appellant alleged that

the agency breached the SA. Specifically, appellant challenged the SA

on three grounds: (a) that he was not paid at the GS-11 level for the

temporary GS-11 position that he was assigned to; (b) that he did not

receive six months plus one day time-in-grade with no pay to the position

of Supervisory Planner and Estimator, WN-4071-07, based on a 365 day year,

and that he felt that the Agency's offer was four days short; and (c)

that the six months plus one day time-in-grade paperwork did not begin

on July 1, 1997.

In its FAD, the agency asserted that it did not breach the SA. According

to the agency, the settlement had been honored because: (1) appellant

probably received all the money owed to him for the temporary position;

(2) the agency calculated its paychecks based on a 360 day year, and

thus the six months that appellant received was not four days short;

(3) it was the agency's understanding that appellant wanted the six

months plus one day time in grade shown before or beginning July 1, 1997.

As such they credited him with the six months, beginning December 10,

1996 and running through June 7, 1997, so that he was eligible, under

personnel regulations, to be assigned to the temporary promotion that

he received in March, 1998. The agency emphasized that, in its view,

it did not breach the settlement. In order to "put the matter behind"

it, however, the agency said that it made corrections to the paperwork,

crediting appellant for the four days that he alleged he was due, and

reflecting that the six months plus one day commenced on July 1, 1997.

This appeal followed.

We note that the record contains no evidence that appellant was ever paid

all the money owed to him for the temporary position, given that it was

a GS-11 position for which he was originally paid at the GS-9 rate.<0>

Further, the record contains no evidence that appellant was credited for

the four days that he alleged he was due, or that his record was adjusted

to reflect that the six months plus one day commenced on July 1, 1997,

as the settlement agreement clearly said that it should.

ANALYSIS AND FINDINGS

EEOC Regulation 29 C.F.R. Section 1614.504(a) provides that any settlement

agreement knowingly and voluntarily agreed to by the parties shall be

binding on both parties. That section further provides that if the

complainant believes that the agency has failed to comply with the terms

of a settlement agreement, the complainant shall notify the Director

of Equal Employment Opportunity of the alleged noncompliance with the

settlement agreement within 30 days of when the complainant knew or

should have known of the alleged noncompliance. 29 C.F.R. � 1614.504(a).

The complainant may request that the terms of the settlement agreement

be specifically implemented or request that the complaint be reinstated

for further processing from the point processing ceased. Id.

The Commission has held that a settlement agreement constitutes a contract

between the employee and the agency, to which ordinary rules of contract

construction apply. See Herrington v. Department of Defense, EEOC Request

No. 05960032 (December 9, 1996). The Commission has further held that

it is the intent of the parties as expressed in the contract, and not

some unexpressed intention, that controls the contract's construction.

Eggleston v. Department of Veterans Affairs, EEOC Request No. 05900795

(August 23, 1990); In re Chicago & E.I. Ry. Co., 94 F.2d 296 (7th

Cir. 1938). In reviewing settlement agreements to determine if there

is a breach, the Commission is often required to ascertain the intent

of the parties and will generally rely on the plain meaning rule.

Wong v. U.S. Postal Service, EEOC Request No. 05931097 (April 29, 1994)

(citing Hyon O v. U.S. Postal Service, EEOC Request No. 05910787 (December

2, 1991)). This rule states that if the writing appears to be plain and

unambiguous on its face, then its meaning must be determined from the

four corners of the instrument without any resort to extrinsic evidence

of any nature. Id. (citing Montgomery Elevator v. Building Engineering

Service, 730 F.2d 377 (5th Cir. 1984)).

We find that the agency clearly breached the settlement agreement

in that the agency admitted that it did not reflect in its paperwork

that the six months plus one day time in grade began on July 1, 1997.

Further the agency has provided no evidence to show that any of the

efforts that it purports to have made to "put the matter behind" them

have actually been accomplished. There is no evidence that appellant was

credited for four days, that his paperwork now shows the six plus months

beginning on July 1, 1997, or that he was ever paid all the money that

he was owed for the temporary GS-11 position that he held. Since it is

the agency's burden to demonstrate that they have attempted to cure the

matter once a breach is shown, we find that they have not done so.

CONCLUSION

Based on the record in this case, we find that the agency's decision

was improper and is REVERSED.

ORDER

The agency is ORDERED to take the following actions:

1. The agency shall comply in full with paragraphs a,b, and c of the

settlement agreement. The agency shall submit documentation regarding

implementation of these paragraphs to appellant.

2. Within thirty (30) calendar days of the date this decision becomes

final, the agency shall submit a report of compliance, with proof of

all relevant actions taken regarding implementation of paragraphs a, b,

and c, to the Compliance Officer as referenced below.

IMPLEMENTATION OF THE COMMISSION'S DECISION (K0595)

Compliance with the Commission's corrective action is mandatory.

The agency shall submit its compliance report within thirty (30)

calendar days of the completion of all ordered corrective action. The

report shall be submitted to the Compliance Officer, Office of Federal

Operations, Equal Employment Opportunity Commission, P.O. Box 19848,

Washington, D.C. 20036. The agency's report must contain supporting

documentation, and the agency must send a copy of all submissions to

the appellant. If the agency does not comply with the Commission's

order, the appellant may petition the Commission for enforcement of

the order. 29 C.F.R. �1614.503 (a). The appellant also has the right

to file a civil action to enforce compliance with the Commission's

order prior to or following an administrative petition for enforcement.

See 29 C.F.R. �� 1614.408, 1614.409, and 1614.503 (g). Alternatively,

the appellant has the right to file a civil action on the underlying

complaint in accordance with the paragraph below entitled "Right to File

A Civil Action." 29 C.F.R. �� 1614.408 and 1614.409. A civil action for

enforcement or a civil action on the underlying complaint is subject to

the deadline stated in 42 U.S.C. �2000e-16(c) (Supp. V 1993). If the

appellant files a civil action, the administrative processing of the

complaint, including any petition for enforcement, will be terminated.

See 29 C.F.R. �1614.410.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0795)

The Commission may, in its discretion, reconsider the decision in this

case if the appellant or the agency submits a written request containing

arguments or evidence which tend to establish that:

1. New and material evidence is available that was not readily available

when the previous decision was issued; or

2. The previous decision involved an erroneous interpretation of law,

regulation or material fact, or misapplication of established policy; or

3. The decision is of such exceptional nature as to have substantial

precedential implications.

Requests to reconsider, with supporting arguments or evidence, MUST

BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this

decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive

a timely request to reconsider filed by another party. Any argument in

opposition to the request to reconsider or cross request to reconsider

MUST be submitted to the Commission and to the requesting party

WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request

to reconsider. See 29 C.F.R. �1614.407. All requests and arguments

must bear proof of postmark and be submitted to the Director, Office of

Federal Operations, Equal Employment Opportunity Commission, P.O. Box

19848, Washington, D.C. 20036. In the absence of a legible postmark,

the request to reconsider shall be deemed filed on the date it is received

by the Commission.

Failure to file within the time period will result in dismissal of your

request for reconsideration as untimely. If extenuating circumstances

have prevented the timely filing of a request for reconsideration,

a written statement setting forth the circumstances which caused the

delay and any supporting documentation must be submitted with your

request for reconsideration. The Commission will consider requests

for reconsideration filed after the deadline only in very limited

circumstances. See 29 C.F.R. �1614.604(c).

RIGHT TO FILE A CIVIL ACTION (R0993)

This is a decision requiring the agency to continue its administrative

processing of your complaint. However, if you wish to file a civil

action, you have the right to file such action in an appropriate United

States District Court. It is the position of the Commission that you

have the right to file a civil action in an appropriate United States

District Court WITHIN NINETY (90) CALENDAR DAYS from the date that you

receive this decision. You should be aware, however, that courts in some

jurisdictions have interpreted the Civil Rights Act of 1991 in a manner

suggesting that a civil action must be filed WITHIN THIRTY (30) CALENDAR

DAYS from the date that you receive this decision. To ensure that your

civil action is considered timely, you are advised to file it WITHIN

THIRTY (30) CALENDAR DAYS from the date that you receive this decision

or to consult an attorney concerning the applicable time period in the

jurisdiction in which your action would be filed. In the alternative,

you may file a civil action AFTER ONE HUNDRED AND EIGHTY (180) CALENDAR

DAYS of the date you filed your complaint with the agency, or filed your

appeal with the Commission. If you file a civil action, YOU MUST NAME

AS THE DEFENDANT IN THE COMPLAINT THE PERSON WHO IS THE OFFICIAL AGENCY

HEAD OR DEPARTMENT HEAD, IDENTIFYING THAT PERSON BY HIS OR HER FULL NAME

AND OFFICIAL TITLE. Failure to do so may result in the dismissal of your

case in court. "Agency" or "department" means the national organization,

and not the local office, facility or department in which you work.

Filing a civil action will terminate the administrative processing of

your complaint.

RIGHT TO REQUEST COUNSEL (Z1092)

If you decide to file a civil action, and if you do not have or cannot

afford the services of an attorney, you may request that the Court appoint

an attorney to represent you and that the Court permit you to file the

action without payment of fees, costs, or other security. See Title VII

of the Civil Rights Act of 1964, as amended, 42 U.S.C. �2000e et seq.;

the Rehabilitation Act of 1973, as amended, 29 U.S.C. ��791, 794(c).

The grant or denial of the request is within the sole discretion of

the Court. Filing a request for an attorney does not extend your time

in which to file a civil action. Both the request and the civil action

must be filed within the time limits as stated in the paragraph above

("Right to File A Civil Action").

FOR THE COMMISSION:

Oct. 6, 1999

______________ ______________________________

Date Carlton Hadden, Acting Director

Office of Federal Operations

01 In a June 27, 1998 correspondence from appellant he does imply that

at some point he was paid some or all of the money that he was entitled

to, as he now asserts that the agency owes him interest for the delay in

payment for two pay periods at the GS-11 level. It is still unclear

whether appellant has been paid these funds or not.