01A10278_r
08-14-2002
Johnny L. Brooks, Complainant, v. Donald E. Powell, Chairman, Federal Deposit Insurance Corporation, Agency.
Johnny L. Brooks v. Federal Deposit Insurance Corporation
01A10278
August 14, 2002
.
Johnny L. Brooks,
Complainant,
v.
Donald E. Powell,
Chairman,
Federal Deposit Insurance Corporation,
Agency.
Appeal No. 01A10278
Agency No. 000013
DECISION
Complainant filed a timely appeal with this Commission from a final
decision by the agency dated September 12, 2000, finding that it was in
compliance with the terms of the February 4, 2000 settlement agreement
into which the parties entered.
The settlement agreement provided, in pertinent part, that:
(a) [Agency] Division of Finance will support the appeal of the adverse
finding on [complainant's] desk audit appeal. DOF management will argue
that neither [complainant's] position as a first level supervisor and as
reporting to a Grade 15 should not be a bar if the position otherwise
grades as a 15. If the appeal is successful [complainant's] promotion
pursuant to the desk audit will be made effective as of the start of
the first pay period after the initial decision when his desk audit was
rendered - May 14, 1999.
[Complainant] will be non competitively detailed to the position of
Special Assistant to Person A for a period not to exceed 120 days and
shall be temporarily promoted to grade 15 for the duration of his detail.
(d) The detail will be effective on the first pay period after the
initial submission of the financial statements for audit. During the
detail [complainant's] position will remain permanently unencumbered.
If the appeal is successful, [complainant] will return to his original
position after the detail as a Grade 15. If it is not successful,
he will return to his original position as a Grade 14.
Complainant contacted the agency and alleged that the agency was in
breach of the settlement agreement.
In its September 12, 2000 decision, the agency concluded that it acted
in good faith and complied with the terms of the settlement agreement.
With respect to provision (a), the agency stated that on May 25, 2000,
Person B, Director, Division of Finance, submitted a memorandum to Person
C, Deputy to the Chairman and Chief Operating Officer, which officially
requested the results of the desk audit and subsequent determination
be reconsidered. The agency noted that in the May 25, 2000 memorandum,
Person B stipulated that the grade 15 promotion would become effective on
the first pay period after May 14, 1999, if the appeal was successful.
With respect to provision (c), the agency stated that effective March
12, 2000, complainant was detailed as a grade 15 Special Assistant to
Person A until July 1, 2000. With regard to provision (d), the agency
noted that in the May 25, 2000 memorandum, Person B stipulated that
complainant would be returned to his original position at a grade 15,
if his appeal was successful.
On appeal, complainant argues that the agency breached the settlement
agreement and seeks enforcement of the terms of the agreement.
Specifically, complainant alleges that the agency breached the agreement
by returning him to a grade 14 after 120 days without ever reconsidering
his classification. Complainant argues it was improper for the agency
to return him to the grade 14 prior to the review of his appeal.
Complainant claims that the agreement provided for the 120-day detail
because this was the estimated time required to complete a review of
complainant's responsibilities. Additionally, complainant claims that
the agency breached the agreement by failing to promote and detail him
for a full 120 days. Complainant states that the agreement provided
for his temporary promotion and detail for 120 days. He states that the
agency only allowed a detail from March 12, 2000, through July 1, 2000,
a period of only 111 days. Finally, complainant alleges that the agency's
failure to review his classification within 120 days constituted reprisal.
In response to complainant's appeal, the agency reiterates its conclusion
that the settlement agreement was not breached. With regard to the
desk audit appeal, the agency argues that the settlement agreement
did not require that a decision on the desk audit be rendered prior
to complainant's return to his original position and grade level.
The agency argues that provision (a) provided that complainant's
superiors would support an appeal of the adverse desk audit but it
does not specify dates by which the appeal was to be filed or decided.
The agency notes that a decision on the appeal was rendered on August
17, 2000. The agency notes that provision (d) concerned complainant's
return to his position upon the completion of his temporary detail and
does not guarantee that the appeal would be completed prior to the end
of the detail. With regard to complainant's argument that the agreement
was breached when his detail ended prior to 120 days, the agency notes
that the language of the agreement provided that complainant would be
temporarily detailed for a �period not-to-exceed 120 days and shall
be temporarily promoted to grade 15 for the duration of his detail.�
The agency argues that the agreement did not specify that the detail
was to be precisely 120 days. The agency states that the fact that
the detail lasted 112 days rather than exactly 120 days was done as an
administrative convenience. The agency notes that complainant's detail
became effective on the first day of pay-period 6, Sunday, March 12,
2000, and ended on the last day of pay-period 13, Saturday, July 1, 2000.
The record contains a copy of the May 25, 2000 memorandum from Person
B to Person C officially requesting an appeal of the desk audit
of complainant's position. The memorandum mentions that the request
was made based upon an EEO Mediation Settlement between Person A and
complainant. The memorandum states that complainant's position as a
first-line supervisor and his reporting to a grade 15 should not be a
bar in the classification audit if the position otherwise classifies at
the grade 15 level.
The record contains an e-mail from Person B to complainant in which
he states that he called Person C to inform him of the May 25, 2000
memorandum; however, he acknowledges that the memorandum did not actually
reach personnel until the week of July 3, 2000.
The record contains an August 17, 2000 memorandum from Person C addressed
to Person B, concerning his appeal of the classification of complainant's
position. The memorandum states that complainant's position has been
independently reviewed by both a contract classifier and a senior agency
classification specialist and it has been concluded that the position
is properly classified as a Supervisory Accountant, at the grade 14 level.
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).
In the present case, we find that the agency properly determined that it
complied with the terms of the agreement. With regard to complainant's
claim that the agency breached the agreement by failing to detail him
for 120 days, we note that the language of the agreement provided that
complainant would be detailed for a �period not to exceed 120 days.�
Complainant acknowledges that he was detailed and temporarily promoted
for a period of 111 days from March 12, 2000, through July 1, 2000.
As the agreement did not specify that the detail was to last exactly 120
days and based on the fact that complainant has not shown bad faith by
the agency in ending the detail after 111 days, we find that the agency
complied with provision (c). With regard to complainant's claim that
the agency breached the agreement when it returned him to his grade 14
position prior to completion of his desk audit appeal, we find that
complainant has not shown breach of the agreement. We note that the
language in the agreement did not specify that the desk audit appeal had
to be completed prior to the end of complainant's detail. Finally, we
note that to the extent complainant alleges that the agency's failure
to review his classification within 120 days constituted reprisal
for prior protected activity, such a claim should be processed as a
separate complaint under 29 C.F.R. � 1614.106, rather than as a claim of
noncompliance with a settlement agreement. See 29 C.F.R. � 1614.504(c).
Complainant is hereby advised to contact an EEO Counselor if he wishes
to further purse the matter.
Accordingly, the agency's final decision 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
August 14, 2002
__________________
Date