Charles E. Deal, Complainant,v.John Truesdale, Acting Chairman, National Labor Relations Board, Agency.

Equal Employment Opportunity CommissionNov 22, 1999
01986663 (E.E.O.C. Nov. 22, 1999)

01986663

11-22-1999

Charles E. Deal, Complainant, v. John Truesdale, Acting Chairman, National Labor Relations Board, Agency.


Charles E. Deal, )

Complainant, )

)

v. ) Appeal No. 01986663

)

John Truesdale, )

Acting Chairman, )

National Labor Relations Board, )

Agency. )

______________________________ _)

DECISION

Complainant filed the instant appeal from the agency's decision dated

August 6, 1998, finding that the agency did not breach a settlement

agreement entered into by the parties on January 7, 1997.<1> The

settlement agreement provided, among other terms, that complainant would

retire from the agency and that the agency would: (1) change complainant's

appraisal rating to "Outstanding"; (2) increase complainant's performance

award; and (3) credit complainant's sick leave towards complainant's

retirement. The agreement also provided:

In order to avoid the cost of litigation, the Agency agrees to grant

Mr. Deal $50,000 in compensatory damages. This amount is separate

and distinct from any other payment made to Mr. Deal pursuant to this

agreement. The payment of $50.000 will become due and payable upon

Mr. Deal's voluntary retirement on February 1, 1997.

Complainant first alleged breach in writing on April 1, 1998. Complainant

alleged that the agency breached provision 2 of the agreement by treating

the $50,000 in compensatory damages as taxable income. Complainant

asserted that the agency had assured him that the $50,000 in compensatory

damages was not taxable. The agency found that complainant failed to

timely raise the breach allegation and that the agency did not breach

the agreement.

The regulation set forth at 64 Fed. Reg 37,644, 37,660 (1999) (to be

codified as and hereinafter cited as 29 C.F.R. �1614.504(a)) provides

that any settlement agreement knowingly and voluntarily agreed to by the

parties shall be binding on both parties. If the complainant believes

that the agency has failed to comply with the terms of a settlement

agreement, then the complainant shall notify the EEO Director of the

alleged noncompliance "within 30 days of when the complainant knew or

should have known of the alleged noncompliance." 29 C.F.R. �1614.504(a).

The complainant may request that the terms of the settlement agreement

be specifically implemented or request that the complaint be reinstated

for further processing from the point processing ceased. Id.

Settlement agreements are contracts between the complainant and the agency

and it is the intent of the parties as expressed in the contract, and not

some unexpressed intention, that controls the contract's construction.

Eggleston v. Department of Veterans Affairs, EEOC Request No. 05900795

(Aug. 23, 1990); In re Chicago & E.I. Ry. Co., 94 F.2d 296 (7th

Cir. 1938). In reviewing settlement agreements to determine if there is

a breach, the Commission is often required to ascertain the intent of the

parties and will generally rely on the plain meaning rule. Wong v. United

States Postal Service, EEOC Request No. 05931097 (Apr. 29, 1994) (citing

Hyon v. United States Postal Service, EEOC Request No. 05910787 (Dec. 2,

1991)). This rule states that if the writing appears to be plain and

unambiguous on its face, then its meaning must be determined from the

four corners of the instrument without any resort to extrinsic evidence

of any nature. Id. (citing Montgomery Elevator v. Building Engineering

Service, 730 F.2d 377 (5th Cir. 1984)).

The Commission finds that the agency did not breach provision 2 of

the agreement. Complainant does not claim that the agency did not

pay him $50,000 in compensatory damages. There is no provision in

the agreement regarding taxes in connection with compensatory damages.

The agency did not withhold any portion of the compensatory damage payment

for tax purposes. Therefore, the agency did not breach provision 2 of

the agreement. Because of our disposition we do not address the issue

of whether complainant timely raised the breach allegation.

The Commission also finds that complainant has not shown that he was

intentionally misled into entering the agreement, that the agency acted

fraudulently, or that the agency has acted in bad faith. Complainant has

not persuasively shown that the agency purposely misled him about the

status of the law regarding the taxability of compensatory damage awards.

Furthermore, the agency's reporting of the compensatory damage payment

to the Internal Revenue Service as income does not constitute bad faith.

Although complainant has not claimed that the parties' belief about the

taxability of compensatory damage awards constitutes a mutual mistake of

fact or law, the Commission shall examine this issue on its own motion.

The Commission finds that the record does not show that there was

a mutual mistake of fact or law. It can not be determined with any

reasonable degree of certainty what exactly complainant believed was

the status of the law regarding the taxability of compensatory damages,

prior to entering into the settlement agreement. Furthermore, it is

not clear from the record that either party has made a mistake in the

ultimate issue as to whether this particular compensatory damage payment

is taxable. Finally, complainant was aware there was an issue regarding

the taxability of compensatory damages, yet he failed to include a

provision in the agreement concerning such taxes.

The agency's decision finding that complainant failed to show that the

agency breached the settlement agreement is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M1199)

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

64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter

referred to as 29 C.F.R. �1614.405). 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 64 Fed. Reg. 37,644, 37,661 (1999)

(to be codified and hereinafter referred to as 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).

RIGHT TO FILE A CIVIL ACTION (S0993)

It is the position of the Commission that 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.

You should be aware, however, that courts in some jurisdictions have

interpreted the Civil Rights Act of 1991 in a manner suggesting that

a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the

date that you receive this decision. To ensure that your civil action

is considered timely, you are advised to file it WITHIN THIRTY (30)

CALENDAR DAYS from the date that you receive this decision or to consult

an attorney concerning the applicable time period in the jurisdiction

in which your action would be filed. 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 (Z1092)

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:

November 22, 1999

DATE

Carlton

M.

Hadden,

Acting

Director

Office of Federal Operations

CERTIFICATE OF MAILING

For timeliness purposes, the Commission will presume that this decision

was received within five (5) calendar days of mailing. I certify that

the decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

_________________________

__________________________1On November 9, 1999, revised regulations

governing the EEOC's federal sector complaint process went into effect.

These regulations apply to all Federal sector EEO complaints pending at

any stage in the administrative process. Consequently, the Commission

will apply the revised regulations found at 64 Fed. Reg. 37,644 (1999),

where applicable, in deciding the present appeal. The regulations,

as amended, may also be found at the Commission's website at WWW.EEOC.GOV.