01994254_r
04-10-2001
Nick Trobovic, Complainant, v. Robert B. Pirie, Jr., Acting Secretary, Department of the Navy, Agency.
Nick Trobovic v. Department of the Navy
01994254
April 10, 2001
.
Nick Trobovic,
Complainant,
v.
Robert B. Pirie, Jr.,
Acting Secretary,
Department of the Navy,
Agency.
Appeal No. 01994254
Agency No. 96-60478-003
DECISION
Complainant filed a timely appeal with this Commission alleging
noncompliance with the terms of the October 3, 1996 settlement agreement
into which the parties entered. The settlement agreement provided,
in pertinent part, that:
The Naval Weapons Station Earle Agrees to:
(A) Immediately detail the complainant to �Unclassified duties� in the
Public Works Department, Naval Weapons Station Earle. Upon completion
of a classified position description for a GS-09 contract position,
the complainant will then be permanently reassigned to the Public Works
Department.
By letter to the agency dated March 18, 1999, complainant alleged that
the agency was in breach of the settlement agreement, and requested that
his EEO complaint be reinstated. Specifically, complainant alleged
that prior to the settlement, he was asked to perform duties beyond
his GS-9 Industrial Engineering Technician position description in
the Ordnance Department, and that the terms of the settlement relieved
him of the disputed duties and permanently transferred him to a GS-09
Contract Inspector's billet in Public Works. Complainant claimed the
breach of the agreement occurred when, on February 19, 1999, he was
permanently reassigned from a GS-0809-09 Construction Representative to
a GS-0802-09 Engineering Technician, where the principle duties of the
new position are those that were the central issue of his EEO complaint
prior to settlement.
After the agency did not respond to his claims of settlement breach,
complainant appealed to the Commission. In his appeal, complainant
asserts that although he was transferred to Public Works after the
settlement, he was still required to perform the disputed duties that
did not conform to his new GS-9 Construction Representative position,
and that he was reassigned to the GS-9 Engineering Technician position
after he continued to request reclassification to a GS-11 position
that would reflect the �process engineering duties� he was performing.
Complainant also asserts that he was suffering from clinical depression
at the time he signed the settlement, and that the agreement should
therefore be nullified and his complaint reinstated.
In its response to complainant's appeal, the agency states that
complainant was transferred from Ordnance to the Public Works Department,
Naval Weapons Station Earle, and that after a �Transfer of Installation
Management Function,� the Public Works Department was transferred to the
Navy Public Works Center, Norfolk, in October 1997. The agency states
that although complainant's position description was rewritten as an
Engineering Technician due to a consolidation of functions within the
Public Works Center, Norfolk, the agreement was not breached because he
was not transferred back to Ordnance at Naval Weapons Station Earle.
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 instant case, we find that complainant has not shown that the
agency has breached the settlement agreement. The agreement states
that complainant would be immediately detailed to the Public Works
Department, and that complainant would then be permanently assigned
to the Public Works Department after completion of a GS-9 contract
position description. A review of the record shows, and complainant
admits on appeal, that complainant was assigned to the Public Works
Department both immediately and in a permanent position as a GS-0809-09
Construction Representative, thus fulfilling the terms of the agreement.
Moreover, despite the �Transfer of Installation Management Function�and
complainant's reassignment, complainant remained a part of the Public
Works Department. Although complainant contends that his assignment in
Public Works did not change his disputed duties and that the principle
duties of the new position are those that were the central issue of
his EEO complaint, the agreement does not commit the agency to assign
complainant to a certain position or relieve him from a certain set
of duties. If complainant wished to make those matters a condition
for settlement, they should have been made part of the agreement.<1>
Finally, with regard to complainant's request to nullify the agreement,
complainant has failed to provide any evidence that he was incapable of
entering into the agreement because of his depression, or to otherwise
void the valid settlement agreement.
Accordingly, as complainant has not shown breach of the settlement
agreement, the agency's decision is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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 10, 2001
__________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
__________________
Date
______________________________
1We note that, to the extent complainant asserts a claim that he is
forced to perform work beyond his position description, he may bring
the matter to the attention of an EEO Counselor in order to file a new
complaint pursuant to 29 C.F.R. � 1614.105(a). The Commission does not
address whether such contact would be timely.