0120114103
02-07-2012
Rodney E. Davis, Complainant, v. John M. McHugh, Secretary, Department of the Army, Agency.
Rodney E. Davis,
Complainant,
v.
John M. McHugh,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120114103
Agency No. ARPINEB08JUL02758
DECISION
Complainant filed a timely appeal with this Commission from a final
decision (FAD) by the Agency dated August 2, 2011, finding that it was
in compliance with the terms of the settlement agreement into which the
parties entered. See 29 C.F.R. § 1614.402; 29 C.F.R. § 1614.504(b);
and 29 C.F.R. § 1614.405.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as
a Material Handler at the Agency’s Directorate of Material Management
facility in Pine Bluff, Arkansas. Believing that the Agency subjected
him to unlawful discrimination, Complainant contacted an Agency EEO
Counselor to initiate the EEO complaint process. On November 27, 2009,
Complainant and the Agency entered into a settlement agreement to resolve
the matter. The settlement agreement provided, in pertinent part that
the Agency agrees to:
(1) Permanently reassign the Complainant from WL-06 Material Handler
in Material Management to an Equipment Specialist GS-05/07 within the
Directorate of Logistics with an entitlement to pay retention NLT 30
days from the date of this agreement.
By letter to the Agency dated June 30, 2011, Complainant alleged that
the Agency was in breach of the settlement agreement, and requested that
the Agency specifically implement its terms. According to the record,
Complainant alleged that the Agency assigned him to the position of
Equipment Specialist GS-1603-05/07 with a promotion potential ceiling
of GS-07 in violation of the settlement agreement. Complainant contends
that the Agency was obligated to promote him to the position of Equipment
Specialist GS-1670-05/07/09 with a promotion potential ceiling of GS-09.
In its August 2, 2011 FAD, the Agency concluded that it fully complied
with the terms of the agreement between the parties. The Agency argues
that Complainant failed to file his notice of breach in a timely manner.
Specifically, the record indicates that in accordance with the November
27, 2009 settlement agreement, Complainant was reassigned on March 29,
2009 to the position of Equipment Technician GS-05 position with pay
retention. However, Complainant did not advise the Agency of the alleged
breach of the agreement until June 30, 2011; more than two years later.
The Agency’s final decision further concludes that Complainant has
failed to demonstrate that the Agency breached the settlement agreement.
In reaching this conclusion, the Agency indicates that its obligation
under the agreement was to reassign Complainant to the position of
Equipment Specialist GS-05/07 within the Directorate of Logistics with
an entitlement to pay retention. The record indicates that Complainant
was reassigned accordingly on March 29, 2009. The Agency maintains
that there is no requirement under the settlement that Complainant be
reassigned to a position with a promotion potential to the GS-09 level.
ANALYSIS
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. Furthermore, 29 C.F.R. 1614.504 specifically states the
following, “if the complainant believes that the agency has failed
to comply with the terms of the settlement agreement or decision, the
complainant shall notify the EEO Director, in writing, of the alleged
non-compliance within 30 days of when the complainant knew or should
have known of the alleged noncompliance.”
EEOC Regulation 29 C.F.R. § 1614.504(a) further 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. Dep’t of Def., 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. Dep’t 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. U.S. Postal Serv.,
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).
The record indicates that Complainant was reassigned pursuant to the
agreement on March 29, 2009 but did not allege breach of the agreement for
over two years; on June 30, 2011. On appeal, Complainant contends that
30 days after he signed the settlement agreement, he was approached by an
Agency official who advised him that in order for him to be promoted to
the level of GS-09, he would need to take another job and remain in that
position for the required time in grade. Complainant contends that he
was advised that after her served the requisite time in grade, he would
automatically be promoted to the level of GS-09, Equipment Specialist.
Complainant further alleges that he was unaware of the Agency’s
breach until June 29, 2011, when he asked an Agency official to look
at his paperwork. Complainant alleges that he was advised at that time
that the Agency breached the settlement when he was not reassigned to a
GS-09 position and then promptly advised the Agency of its breach on June
30, 2011. In the instant case, we find that Complainant failed to raise
his allegation of breach in a timely manner within 30 days of the date
that the breach occurred. In that regard, we find that Complainant’s
allegation of breach is untimely filed. In reaching this conclusion,
the Commission notes that based on Complainant’s belief that the
settlement agreement obligated the Agency to promote him to a GS-09
position, he was allegedly advised on or about February 27, 2009, 30
days after he signed the agreement, that he would need to serve time in
grade before he could be promoted to the position of GS-09. Therefore,
Complainant knew as early as February 27, 2009 of the Agency’s alleged
breach of the agreement.
Assuming that Complainant’s breach allegation was timely raised, the
Agency’s final decision also addressed the merits of Complainant’s
allegation of breach. Specifically, the Agency determined that it had
fully complied with the provision of the agreement. Upon review, we
concur with the Agency’s finding in that regard. The January 27, 2009
agreement between the parties obligated the Agency to reassign Complainant
to a position of Equipment Specialist GS 05/07 with an entitlement to
pay retention. There is nothing in the agreement requiring the Agency
to promote Complainant to a GS-09 position of any kind. If Complainant
had intended for the Agency to reassign him accordingly, he should have
negotiated for such before signing the settlement agreement.
Finally, we note that the Agency further indicates in its final decision,
that the reassignment was not accomplished within 30 days as provided
in the agreement. Moreover, the Agency points out that the title of the
position Complainant was reassigned to was Equipment Technician, rather
than Equipment Specialist as agreed to by the parties. The Commission
has found substantial compliance with the terms of a settlement agreement
where agencies have committed, in good faith, a technical breach of
a provision of the agreement which did not undermine its purpose or
effect. The Commission has also found that the failure to satisfy
a time-frame specified in a settlement agreement does not prevent a
finding of substantial compliance of its terms, especially when all
required actions were subsequently completed. Mopsick v. Department of
Health and Human Services, EEOC Appeal No. 0120073654 (August 17, 2009)
(citing Lazarte v. Department of the Interior, EEOC Appeal No. 01954274
(April 25, 1996)); Sorting v. United States Postal Service, EEOC Request
No. 05950721 (November 21, 1996), (citing Baron v. Department of the
Treasury, EEOC Request No. 05930277 (September 30, 1993)) (two-week delay
in transfer of official letter of regret rather than letter of apology
found to be substantial compliance). We find therefore, that the change
in title from Equipment Specialist to Equipment Technician and the delay
in reassigning Complainant had no material affect on the Agency’s
compliance with the January 27, 2009 agreement between the parties.
CONCLUSION
As such, the Commission finds the Agency was not in breach of the
agreement. The Agency's decision is affirmed for the reasons set forth
herein.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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
77960, Washington, DC 20013. 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 (S0610)
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 (Z0610)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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
February 7, 2012
__________________
Date
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0120114103
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120114103