01990564
03-23-2000
Frederick A. Reid, Complainant, v. Louis Caldera, Secretary, Department of the Army, Agency.
Frederick A. Reid v. Department of the Army
01990564
March 23, 2000
Frederick A. Reid, )
Complainant, )
)
v. )
) Appeal No. 01990564
Louis Caldera, ) Agency No. BEFLF 09705H0170
Secretary, )
Department of the Army, )
Agency. )
____________________________________)
DECISION
On October 5, 1998, complainant filed an appeal with this Commission after
receiving no response from the agency to his notice of settlement breach
dated August 19, 1998.<1> A complainant may appeal to the Commission for
a determination as to whether the agency has complied with the terms of a
settlement agreement no sooner than thirty-five days after serving notice
to the agency, when the agency fails to respond to the notice of breach.
See EEOC Regulation 37,644, 37,660 (1999)(to be codified and hereinafter
referred to as EEOC Regulations 29 C.F.R. � 1614.504(b)). Accordingly,
the appeal is accepted.
A review of the record reveals that complainant filed a formal
EEO complaint, Case No. BEFLFO9705H0170, alleging that he had been
subjected to unlawful employment discrimination based on race (Hispanic),
national origin (Belize Central American), and reprisal. The agency
accepted complainant's complaint for processing and an investigator was
assigned. On April 29, 1998, during a pre-conference meeting of the Fact
Finding Conference, the complainant and agency settled the complaint.
The settlement agreement provided, in pertinent part, that:
Within 90 days of the effective date of this agreement, reassign
the complainant as a team leader under the Director of Engineering;
assign Person A and Person B to the Complainant's team; coordinate with
the Complainant the reassignment of two additional personnel to the
Complainant's team. Management retains the final decision regarding
the personnel assigned to the team. The Complainant understands that
there is a pending reengineering of the Center for Public Works (CPW)
which may result in a change to the organizational structure to which
the agency has agreed to assign the complainant.
Within 45 days of the effective date of this agreement, develop a clear
delineation of internal control responsibilities within the agency that
meet the spirit and intent of Army internal control policies.
Within 30 calendar days of the effective date of this agreement, Chief,
DPW Management Division, will issue a written notification that the
Letter of Counseling, dated 10 April 1997 has been removed from all
official files.
Actively and aggressively support and endorse the Complainant's
applications for the courses listed below. The Complainant understands
that as a result of the pending reengineering of CPW which could result
in reassignments and/or realignments, that these courses may not be
applicable to his future job responsibilities.
Within 90 days from the effective date of this agreement, establish a
plan to ensure career development and equal treatment of minorities with
emphasis on under represented groups.
By letter to the agency dated August 19, 1998, complainant alleged that
the agency was in breach of the settlement agreement and requested
that his complaint be reinstated. Specifically, complainant alleged
that the agency violated provision a. when it notified him that he,
along with Person A and Person B, would be assigned to Person C's team.
Person C would be the supervisor, rather than complainant. According to
complainant, provisions b. and e. have not been fulfilled by the agency.
With regard to provision c., complainant contends that the notification
was untimely issued and its contents do "not meet the spirit of the
agreement...." Complainant claims that since the Center for Public
Works will be disestablished, the courses provided for in provision
d. will not be provided.
64 Fed. Reg. 37,644, 37,656 (1999)(to be codified and hereinafter
referred to as 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 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).
Further, an complainant alleging a breach of an agreement has the burden
of showing that the agency did not comply with the settlement agreement.
See Moore v. Department of the Navy, EEOC Appeal No. 01931395 (April 14,
1993), Request to Reconsider Denied, Moore v. Department of the Navy,
EEOC Request No. 05930694 (April 7, 1994).
Provision a.
In the instant case, the Commission finds that the agency did not comply
with provision a. of the settlement agreement. Provision a. clearly
states that complainant will be reassigned as a team leader under the
Director of Engineering. However, complainant has provided an e-mail,
dated July 20, 1998, stating that complainant will be transferred to a
team where Person C will be the supervisor. Specifically, the e-mail
message indicates, in pertinent part, that "Personnel to be transferred
with the mission were [Person A, Person B, and complainant]. . . . . ."
The e-mail message further indicated that a named agency official would
be the supervisor. The e-mail message reflects that complainant was
not reassigned as a team leader under the Director of Engineering, as
articulated in provision a. of the settlement agreement. The agency
does not refute complainant's claim. Accordingly, we find that the
agency breached the settlement agreement.
Provisions b. and e.
With regard to provision b. (delineation of responsibilities) and e. (plan
for equal treatment), we find that complainant has not met his burden.
Complainant has not included in the record any evidence supporting these
claims of breach.
Provisions c. and d.
A review of the record also reveals that provisions c. and d. have not
been breached. Pursuant to provision c., the agency issued a memorandum
stating that the Statement of Counseling, dated April 10, 1997, was not
part of any official nor unofficial files. Complainant argued that the
contents of the memorandum did not meet the "spirit" of the settlement
agreement. However, we find that the document meets the plain meaning of
the requirement set forth in provision c., namely a written notification
that the Letter of Counseling has been removed from official files.
Provision d. requires the agency to "[a]ctively and aggressively support
and endorse the Complainant's applications for the courses". Complainant
has alleged that she does not believe that the courses will be provided,
but she has failed to show that the agency has not supported and endorsed
her applications, as they are required to do under provision d.
Finally, on appeal complainant also refers to a dispute with a Center
for Public Works employee. This is not an action covered by the
instant agreement. If complainant wishes to pursue this new matter,
he is advised to EEO counseling and file a separate complaint thereon.
See 29 C.F.R. � 1614.504(c).
Once a breach is found, as in the instant case, the remedial relief
is either the reinstatement of the complaint for further processing or
specific enforcement of the settlement agreement. If a complainant's
complaint is reinstated for further processing, then the parties must
be returned to the status quo at the time that the parties entered into
the settlement agreement, which requires that an complainant return any
benefits received pursuant to the settlement agreement. See, e.g. Armour
v. Department of Defense, EEOC Appeal No. 01965593 (June 24, 1997);
Komiskey v. Department of the Army, EEOC Appeal No. 01955696 (September
5, 1996). In the instant case complainant has requested reinstatement
of his complaint.
Accordingly, the agency finding of no settlement breach is REVERSED.
The matter is REMANDED to the agency for reinstatement of the complaint
for further processing.
ORDER
Within 30 days of the date this decision becomes final the agency
shall reinstate the settled matter from the point processing ceased
and thereafter process the matter in accordance with Part 1614
Regulations. Within 30 days of the date this decision becomes final,
the agency shall notify complainant in writing that it has reinstated
the purportedly settled matter and will process the matter in accordance
with EEOC Regulations. A copy of the letter notifying complainant of
the reinstatement of his EEO matter must be submitted to the Compliance
Officer, as referenced herein.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K1199)
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 complainant.
If the agency does not comply with the Commission's order, the complainant
may petition the Commission for enforcement of the order. 29 C.F.R. �
1614.503(a). The complainant 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 64 Fed. Reg. 37,644,
37,659-60 (1999) (to be codified and hereinafter referred to as 29
C.F.R. �� 1614.407, 1614.408) and 29 C.F.R. � 1614.503(g). Alternatively,
the complainant has the right to file a civil action on the underlying
complaint in accordance with the provision below entitled "Right to File
A Civil Action." 29 C.F.R. �� 1614.407 and 1614.408. 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
complainant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated.
See 64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. � 1614.409).
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 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 (R1199)
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 WITHIN NINETY (90) CALENDAR DAYS from the date
that you receive this decision. 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 (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:
March 23, 2000 _____________________________________
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_________________ ______________________________
Date Equal Employment Assistant
1On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at WWW.EEOC.GOV.