01A30766_r
03-27-2003
Brian S. Zahn, Complainant, v. Thomas E. White, Secretary, Department of the Army, Agency.
Brian S. Zahn v. Department of the Army
01A30766
March 27, 2003
.
Brian S. Zahn,
Complainant,
v.
Thomas E. White,
Secretary,
Department of the Army,
Agency.
Appeal No. 01A30766
Agency No. AVHFO0108B0060
DECISION
Complainant filed a timely appeal with this Commission from a final
agency decision by the agency dated September 25, 2002, finding that it
was in compliance with the terms of the December 12, 2001 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.
The December 12, 2001 settlement agreement provided, in pertinent part,
that:
(8) This agreement does not affect complaints FO0102B0010, FO0105B0040
or FO009AO050.<1>
In an undated letter received by the agency on August 20, 2002,
complainant alleged that the agency breached the December 12, 2001
settlement agreement. Specifically, complainant alleged that the agency
breached provision (8) when on August 1, 2002, it suddenly changed its
past practice of allowing him the use of copiers which has caused him
unnecessary expense, delay in the processing of his pending complaints,
and stress. Complainant further alleged that he has been subjected to
ongoing harassment after the execution of the December 12, 2001 agreement.
Complainant requested that his underlying complaints be reinstated for
further processing.
In its September 25, 2002 final decision, the agency found no breach.
Specifically, the agency found that management has paid complainant
$10,000 as agreed. Further, the agency found that complainant's pending
complaints, FO0102B0010, FO0105B0040 and FO009AO050 have not been
affected by the allegations of breach in the instant case. Moreover,
the agency found there is nothing in the settlement agreement that
obligated the agency to allow complainant use of its copiers for his
pending complaints. Finally, the agency advised complainant to raise
reprisal and harassment claims with an EEO Counselor.
On appeal, complainant contends that the agency mistakenly identified and
reviewed the wrong term of the agreement. Complainant further contends
that he made it very clear that the agency breached provision (8).
Complainant argues that EEOC Management Directive MD-110, provides for a
complainant's use of government property for use in duplicating materials
relating to EEO complaints. Further, complainant contends that he already
contacted an EEO Counselor concerning a denial of the use of the copiers,
but that the EEO Counselor denied his right to file a complaint. Finally,
complainant requests that the Commission combine his instant case with
his pending complaints and allow him to retain the $10,000 payment.
In response, the agency contends that there was no breach of the
instant settlement agreement because there is nothing in provision (8)
that allows complainant the use of government equipment in his pending
complaints. The agency admits that complainant has indeed been refused
government equipment to copy documents relating to other EEO complaints.
The agency notes, however, that complainant went on retirement disability
in October 2001; and argues that it is unaware of any authority or
regulation that would either require or authorize the use of government
equipment by private individuals. The agency argues, moreover, that
the applicability of MD-110 in this circumstance would more properly
be considered with his pending EEO complaints, which it indicates are
before the Commission's District Office in San Francisco. The agency
further contends that the three complaints referred in provision (8)
have not been affected by the agreement. The agency requests that the
Commission deny complainant's request to combine the instant case with
his pending complaints and allow him to retain the $10,000 payment.
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, the Commission finds that the agency properly
found no breach of the settlement agreement. Specifically, the
Commission finds that the terms of the settlement agreement do not
provide an agency obligation for the use of its copiers for the pending
complaints referenced in provision (8). To the extent that complainant
is dissatisfied with the agency's actions in denying him the use of a
copier for preparation of documents relating to other complaints, such
dissatisfaction should be raised in those complaints, which the agency
indicates are pending before the Commission's San Francisco office.
Accordingly, the agency's finding of no breach of the December 12,
2001 settlement agreement was proper and 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
March 27, 2003
__________________
Date
1The settlement agreement also provided for a
payment of $10,000. This provision is not at issue in the instant appeal.