0120092202
09-09-2011
Charles Martinsen, Complainant, v. Timothy F. Geithner, Secretary, Department of the Treasury, Agency.
Charles Martinsen,
Complainant,
v.
Timothy F. Geithner,
Secretary,
Department of the Treasury,
Agency.
Appeal No. 0120092202
Agency Nos. IRS-07-0054-F, IRS-07-0792-F,
IRS-07-1012-F, IRS-08-1012-F
DECISION
Complainant filed an appeal with this Commission from a Final Decision
by the Agency, dated March 26, 2009, finding that it was in compliance
with the terms of the March 28, 2008 settlement agreement into which the
parties entered. For the following reasons, we AFFIRM the Agency’s
Final Decision.
The settlement agreement provided, in pertinent part, that:
(d) In 2008, the Complainant will be approved to attend the EEO
Excel Conference, the EEOC Technical Assistance Seminar, USDA Briefing
Techniques, and the Federally Employed Women Conference.
In its March 26, 2009 Final Decision (Ag Decision), the Agency observed
that by correspondence addressed to the Commission, dated February 13,
2009, and February 24, 2009, Complainant alleged that the Agency was
in breach of the settlement agreement, and requested that the Agency
specifically implement its terms. Specifically, Complainant alleged
that the Agency failed to pay for the training and conferences that he
was approved to attend, as provided in paragraph (d) of the settlement
agreement. Agency’s Final Decision, (Ag Decision) March 26, 2009,
at 1.
In its Final Decision, the Agency stated that Complainant did not allege
that he was not approved or that he did not attend the conferences and
training as provided by the agreement. The Agency stated that Complainant
alleged that the Agency either had not paid or had not submitted timely
payment for the courses Complainant attended. The Agency found that
some of the vendors for Complainant’s training had been paid, and
that others were slow to submit invoices for the conferences fees, but
in any event, that the Agency would pay for the courses. The Agency
observed that Agency officials advised Complainant that he was not
responsible for payment and that he could disregard any notices he
received regarding payment from the conference vendors. The Agency
concluded that no breach of the agreement occurred regarding paragraph
(d) of the agreement as alleged. Id. at 2.
On appeal, Complainant alleges additional paragraphs of the settlement
have been breached by the Agency, including the provisions pertaining to
the restoration of his leave, authorization of telework, and the removal
of counseling documents from his files.
ANALYSIS AND FINDINGS
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. 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).
In the instant case, we find that the only issue that appears in the
Agency’s determination pertains to paragraph (d) of the settlement
agreement of March 28, 2008. We shall not consider the breach claims
raised on appeal for the first time in this decision.
Previously, we found in Martinsen v. Department of the Treasury, EEOC
Appeal No. 0120083674 (Dec. 23, 2008), request for reconsideration
denied, EEOC Request No. 0520090166 (July 1, 2009), that the settlement
agreement contained implicit terms. One such term was that the Agency
fund, or reimburse Complainant for the costs of travel and attendance
at the training and conferences described in paragraph (d). At the
time of that decision, we found that the Agency had not breached the
settlement agreement. Id. at 4.
Complainant contends, however, that nearly one year after the execution
of the Settlement Agreement, the Agency has not fully complied with the
Agreement in that he continues to receive notices that invoices for his
conference fees remained unpaid. Ag Decision at 1.
We find that the record on appeal confirms the Agency’s commitment
to pay for the training described in paragraph (d), though the Agency
has not demonstrated that it has thus far actually made payment or
reimbursement to Complainant as required.
We consider that the Agency officials on whom the Agency’s determination
relies have stated that some delay in payment can be attributed to the
vendors whose custom is to delay submission of invoices for payment
to the Agency. Id. at 2. We find that the Agency has, nevertheless,
acknowledged and reconfirmed in writing the implicit condition of the
agreement that it is the Agency’s responsibility to pay the vendors,
and not Complainant’s responsibility. We find that no breach of the
Settlement Agreement has occurred as alleged.
CONCLUSION
We therefore AFFIRM the Agency’s Final Decision finding no breach of
the settlement agreement.
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 (Nov. 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
September 9, 2011
__________________
Date
2
0120092202
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120092202