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.