0120092201
10-27-2009
Arthur J. Washington, Complainant, v. Pete Geren, Secretary, Department of the Army, Agency.
Arthur J. Washington,
Complainant,
v.
Pete Geren,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120092201
Agency No. ARPOLK07MAY01943
DECISION
Complainant filed a timely appeal with this Commission from a final
agency decision dated February 2, 20091, finding that it was in compliance
with the terms of the March 19, 2008 settlement agreement into which the
parties entered. See 29 C.F.R. �� 1614.402; 1614.405; and 1614.504(b).
The settlement agreement provided, in pertinent part, that:
3. The Army agrees:
a. To conduct sensitivity training for the D.A. Police
Supervisors . . . within 30 days of the date this agreement is
signed by all parties . . .
c. If complainant is cleared to return to duty after the physical
and mental fitness for duty examinations, complainant will be
returned to work as a police officer with no limitations on his
ability to perform all duties assigned to D.A. police officers
. . .
g. The complainant will remain in an administrative leave
status until such time as the physical and mental fitness for
duty results clearing him to return to work are provided to
management.
By letter to the agency dated April 4, 2008, complainant alleged that
the agency was in breach of the settlement agreement, and requested that
the agency specifically implement its terms. Specifically, complainant
stated that the agreement is not the one he signed (alleged it has a
different first page and an additional page) and a recording can prove it,
agency representatives talked him into signing the agreement, and that the
agency failed to provide him a copy of the agreement or the complaints he
filed, in a timely manner. Further, in a letter dated April 19, 2008,
complainant alleged that, following his fitness-for-duty examination
(FFDE), the agency delayed his return to work from administrative leave
after the doctor found him " [l]egally qualified to work in a full duty
armed capacity" on April 11.
In its February 2, 2009 final decision, the agency concluded that it did
not breach the March 9 agreement. Specifically, it stated that several
agreement drafts were created during negotiations but the three page
agreement was the only one signed by all; negotiations were not recorded;
complainant failed to establish how he was coerced into signing the
agreement; the agency did not agree to provide complainant copies of the
agreement prior to his FFDEs because the FFDEs needed to be completed
quickly, and it did not agree to provide him copies of his complaints;
and the FFDE physicians did not notify the agency of complainant's status
until April 28 so a May 2 return to work is reasonable. The record
contains: emails dated April 29, 2008 between the agency and the FFDE
doctors about complainant's FFDE status; an agency letter dated April
29, 2008 informing complainant that he was cleared to return to duty
on May 2; an affidavit from the labor counselor who was at negotiations
indicating that the agency did not change or add pages to the agreement;
an affidavit from complainant's supervisor indicating that management
informed him that, on April 28, he could return to duty and he did so
on May 2. The instant appeal from complainant followed.
On appeal, complainant stated that an agency sergeant called him a
racially derogatory name, the agency sent him for FFDEs based on an
untruth, several officers did not attend sensitivity training as is
required by the settlement agreement, and the agency harassed him with
false accusations.
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).
In the instant case, we find that, based on "the plain meaning rule,"
complainant failed to establish that the agency breached the March 19
agreement. Further, we find that the agency provided support for its
finding of compliance, including agency correspondence and affidavits.
We note that, in response to complainant's appellate contention regarding
training, the agency provided completed sign-in sheets for training held
on March 29, 2008. Finally, we find that complainant's contention about
derogatory names and harassment are allegations that subsequent acts
of discrimination occurred and, pursuant to 29 C.F.R. � 1614.504(c),
should be processed as separate complaints. Based on the above, we
AFFIRM the final agency decision finding no breach.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 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 (S0408)
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 (Z1008)
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
October 27, 2009
__________________
Date
1 We note that in Washington v. Dep't of the Army, EEOC Appeal
No. 0120082687 (December 9, 2008), the Commission vacated the agency's
finding of no breach as to the instant settlement agreement and remanded
the matter for supplemental information.
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0120092201
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120092201