0120070707
04-17-2007
William K. Haslam, Complainant, v. Dirk Kempthorne, Secretary, Department of the Interior, (National Park Service), Agency.
William K. Haslam,
Complainant,
v.
Dirk Kempthorne,
Secretary,
Department of the Interior,
(National Park Service),
Agency.
Appeal No. 0120070707
Agency No. FNP-2002-073
DECISION
Complainant filed a timely appeal with this Commission from a final
decision by the agency dated September 27, 2006, finding that it was in
compliance with the terms of a January 22, 2004 settlement agreement.
See 29 C.F.R. � 1614.402; 29 C.F.R. � 1614.504(b); and 29 C.F.R. �
1614.405.
The January 22, 2004 settlement agreement provided, in pertinent part,
that:
2. NPS acknowledges that [complainant] is eligible for rehire in any
job for which he qualifies by virtue of skills and education.
..........
3.e. The agency commits to processing future employment application
fairly and without discrimination or retaliation.1
By e-mail dated December 22, 2004 and by letter dated July 25, 2005,
complainant claimed that the agency breached the subject settlement
agreement. Specifically, complainant claimed that the agency failed to
select him for the following positions: Interpretive position, GS-5; Park
Guide position, GS-4; and Park Guide position, GS-4. Complainant stated
"there seems little or no effort on the part of the bureau (NPS) to assure
that the settlement terms provide justice for me." Complainant states
that "now, even in the application process, there is inconsistency to
the point of disqualifying me for consideration."
In its September 27, 2006 final decision, the agency found no breach.
The agency determined that complainant's claim that he was not selected
for a position, or hired from a certificate of eligibles even though
he made the top three for consideration for a job for which he applied
for were not part of the agreement. The agency further determined that
complainant's claims were employment related issues; and that his claims
should be processed as separate complaints, and not as breach claims.
On appeal, complainant contends that "the most recent example of
not following the settlement agreement is that the hiring authority
researches my NPS background asking for more and more information so that
I am finally told that there is "not enough time left in the season to
complete the background check." Complainant further contends that the
settlement agreement "needs an addendum to insure steps are outlined and
followed to achieve Paragraph 3-E and extend that to co-operation and
fairness in processing the background check." Furthermore, complainant
states "I hope that your offices have the authority to make corrective
action in order to insure that I will be treated equitably in the future
as promised by the settlement agreement of January, 2004. I believe
this calls for appointment to a Full Time Temporary 1039 position with
an informed supervisor and Superintendent."
EEOC Regulation 29 C.F.R. � 1614.504(a) provides that any settlement
agreement knowingly and voluntarily agreed to by the parties, reached at
any stage of the complaint process, shall be binding on both parties.
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,
not some unexpressed intention, that controls the contract's construction.
Eggleston v. Department of Veterans Affairs, EEOC Request No. 05900795
(August 23, 1990). In ascertaining the intent of the parties with regard
to the terms of a settlement agreement, the Commission has generally
relied on the plain meaning rule. See Hyon O v. United States 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,
its meaning must be determined from the four corners of the instrument
without resort to extrinsic evidence of any nature. See Montgomery
Elevator Co. v. Building Eng'g Servs. Co., 730 F.2d 377 (5th Cir. 1984).
Generally, the adequacy or fairness of the consideration in a settlement
agreement is not at issue, as long as some legal detriment is incurred
as part of the bargain. However, when one of the contracting parties
incurs no legal detriment, the settlement agreement will be set aside
for lack of consideration. See MacNair v. U.S. Postal Service, EEOC
Appeal No. 01964653 (July 1, 1007); Juhola v. Department of the Army,
EEOC Appeal No. 01934032 (June 30, 1994) (citing Terracina v. Department
of Health and Human Services, EEOC Request No. 05910888 (March 11, 1992)).
The Commission determines that a fair reading of complainant's breach
claim reflects that complainant is alleging breach of the above referenced
provisions. However, the Commission determines that provision 2,
which requires the agency to acknowledge that complainant "is eligible
for rehire in any job for which he qualifies by virtue of skills and
education," fails to confer on complainant any benefit that he was not
already entitled to as a matter of law. Similarly, provision 3.e. ("the
agency commits to processing future employment application fairly and
without discrimination or retaliation") also provides nothing more than
to which complainant is already entitled. The Commission therefore
determines that provisions 2 and 3.e. are void for lack of consideration.
However, because other consideration was exchanged through the other
provisions of the agreement, we find that the entire settlement is not
invalid but rather reformed without the void provisions 2 and 3.e.
Accordingly, the agency's finding of no breach of the September 6,
2006 settlement agreement is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
The Commission may, in its discretion, reconsider the decision in this
case if the complainant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation
of material fact or law; or
2. The appellate decision will have a substantial impact on the policies,
practices, or operations of the agency.
Requests to reconsider, with supporting statement or brief, must be filed
with the Office of Federal Operations (OFO) within thirty (30) calendar
days of receipt of this decision or within twenty (20) calendar days of
receipt of another party's timely request for reconsideration. See 29
C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for
29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests
and arguments must 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 timely filed if it is received by
mail within five days of the expiration of the applicable filing period.
See 29 C.F.R. � 1614.604. The request or opposition must also include
proof of service on the other party.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. 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).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0900)
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. 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. If you
file a request to reconsider and also file a civil action, filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1199)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
April 17, 2007
__________________
Date
1 The settlement agreement also provides for the agency to acknowledge
that complainant has worked for the agency at several locations over a
period of years and was rated "achieved" in his performance evaluation
and pass/fail reporting process; complainant will direct all prospective
employees to the Personnel Office and notify the head of that office that
a reference request may be forthcoming; the Personnel Office will give
prospective future employers complainant's name, past titles, dates of
service, the fact that he was "fully successful" at his last performance
rating and is eligible for rehire; both complainant and the agency will
acknowledge that complainant's performance rating may change with future
evaluations if he becomes an agency employee in the future; complainant
will identify the Head as the sole source for federal service references;
complainant will contact the Head's office periodically in order to verify
that she is still the proper personnel contact or to determine who would
be the head's successor; the agency will instruct an identified agency
official that he is not to convey informal or formal information about
complainant to prospective employers or agency employees; and complainant
be paid a lump sum of $5,250.00. These provisions are not at issue in
the instant appeal.
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0120070707
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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