0120112002
04-18-2012
Charles R. Martinsen, Complainant, v. Timothy F. Geithner, Secretary, Department of the Treasury, (Internal Revenue Service), Agency.
Charles R. Martinsen,
Complainant,
v.
Timothy F. Geithner,
Secretary,
Department of the Treasury,
(Internal Revenue Service),
Agency.
Appeal No. 0120112002
Agency No. 08-0055
DECISION
Complainant filed an appeal with this Commission from a final decision by
the Agency dated August 17, 2010, finding that it was in compliance with
the terms of the settlement agreement into which the parties entered.
For the following reasons, the Commission AFFIRMS the Agency’s Final
Decision.
BACKGROUND
The March 28, 2008 settlement agreement provided, in pertinent part, that:
1. The agency agrees to the following:
(a) The Complainant will be detailed to the Agency Wide Shared
Services and Diversity office located in Baltimore, Maryland, for a
period of one hundred and twenty (120) calendar days. The Complainant will
report to [the] Director, Treasury Complaint Mega Center. The Complainant
will serve as an advisor to [the Director] by providing data reports
and analysis as assigned. The Complainant will remain at his current
grade level of GS-13 and will remain on his 5/4/9 AWS schedule. The
detail will commence within thirty (30) days of the effective date of
this Agreement. Until such time as the detail to Baltimore commences,
the Complainant will remain on his current detail within Finance.
(b) The Complainant may work from his home one day per week so long
as the Complainant remains under the direction of the Commissioner of
the Small Business Self-Employed Division. Complainant may choose which
day he would like to work from home and will speak to his first level
manager to gain approval.
(c) To restore to Complainant 74 hours of sick leave and 74 hours
of annual leave within sixty (60) days of the effective date of this
Agreement.
(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.
. . . .
(f) To supply Complainant with a neutral letter of reference within
14 days of the effective date of this Agreement. The letter will include
Complainant's title, pay grade, dates of employment, salary, and position
description.
. . . .
(h) To remove the 2006 and 2007 counseling memoranda from
Complainant's performance file within fourteen (14) days of the effective
date of this Agreement.
(i) The Complainant's departure rating from his January to March
2008 detail to Finance shall serve as his mid-year review for his 2008
rating period.
In Martinsen v. Dep’t of the Treasury, EEOC Appeal No. 0120083674
(Dec. 23, 2008), request for reconsideration denied, EEOC Request
No. 0520090166 (July 1, 2009), the Commission considered alleged Agency
non-compliance with provisions (a), (b), (c), (d), (f), (h), and (i) of
the Settlement Agreement. In that decision, the Commission determined
that Complainant’s breach allegations with respect to provision (b)
(telework) was untimely raised. Martinsen, EEOC Appeal No. 0120083674.
The Commission found that the Agency had demonstrated compliance with
provisions (a) (detail), (d) (training), and (f) (neutral reference).
Id. The Commission found that the Agency had not provided sufficient
evidence that it had complied with three provisions of the Settlement
Agreement, specifically provisions (c) (leave restoration), (h)
(removal of counseling memoranda), and (i) (departure rating). Id.
The Commission ordered the Agency to supplement the record with evidence
indicating whether it had complied with provisions (c), (h), and (i)
of the Settlement Agreement. Id.
The Agency subsequently issued a Final Decision on the remanded breach
claims on August 17, 2010. In its decision, the Agency concluded that
it had complied with the Settlement Agreement. Specifically, the Agency
noted that by letter dated May 6, 2008, the Chief of the Agency’s IRS
Austin Payroll Center notified Complainant that his leave balances had
been restored as required (paragraph (c)). Further, the Agency found
that the Director, Equal Opportunity & Diversity confirmed that the
identified counseling memoranda had been removed from Complainant’s
performance file (paragraph (h)). Additionally, the Agency found that
the same Director had provided Complainant with his departure performance
rating and explained to Complainant how she determined Complainant’s
mid-year performance rating for 2008 was at the “met” expectations
level (paragraph (i)). The Agency submitted copies of the documents
referenced in its Decision to the Commission and to Complainant, in
addition to providing Complainant with appeal rights to the Commission.
On appeal, Complainant states that the Agency has breached provisions
(b), (c), and (h) of the settlement agreement. Complainant also argues
that the Agency failed to investigate an additional complaint he filed,
Agency number 08-0055, which Complainant states was never settled.
Complainant is not contesting in the instant appeal that the Agency has
breached provision (i) of the settlement agreement.
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 EEOC Appeal No. 0120083674, we found that the Agency issued a
determination on May 12, 2008, addressing Complainant’s claim that the
Agency breached provision (b) (telework) of the settlement agreement.
We further found that Complainant failed to file an appeal from this
final decision and that Complainant’s appeal with respect to provision
(b) of the Settlement Agreement was untimely. Martinsen, EEOC Appeal
No. 0120083674. In the instant appeal Complainant argues that he was
denied telework in December 2008, in breach of provision (b) of the
settlement agreement. In a letter to an EEOC Compliance Officer dated
August 10, 2010, the Agency states that this breach claim was untimely
raised by letter dated August 5, 2010, to the Commission’s Compliance
Officer. We agree. Allegations of non-compliance with a settlement
agreement must be raised within 30 days of when Complainant knew or should
have known of the noncompliance. 29 C.F.R. § 1614,504(a). Complainant
has not shown that he timely raised this claim of breach of provision (b)
regarding the alleged denial of telework in December 2008 (or any other
alleged telework denial after the Agency’s May 12, 2008 decision),
to the Agency’s EEO Director in writing in a matter clearly indicating
that he was attempting to raise a new breach claim.
Regarding provision (c) (leave restoration), we find that the Agency has
complied with this provision and has provided evidence showing that the
leave was restored. Furthermore, it appears that the leave restoration
was made within 60 days of the effective date of the settlement agreement
as required by the agreement.
In its Final Decision, the Agency references the statement of the Equal
Opportunity & Diversity Director, SBSE (SBSE Director) dated October 10,
2008, wherein she states that on April 2, 2008, she personally removed the
2006 and 2007 counseling memoranda from Complainant’s performance file
as required by provision (h) of the settlement agreement. We find the
plain language of the Agreement states that the Agency agrees to “remove
the 2006 and 2007 counseling memoranda” from Complainant’s file,
and does not state that any other memoranda will be removed. We find that
the Agency has complied with provision (h) of the settlement agreement.
Complainant states on appeal that the Agency improperly closed his
complaint number 08-0055. Complainant states that this complaint was not
settled by the settlement agreement of March 28, 2008, and requests that
the Commission order the Agency to commence an investigation into the
merits of that complaint. In Martinsen, EEOC Appeal No. 0120083674 the
Commission found that Agency number 08-0055 was settled. Furthermore,
if Complainant believed that decision was improper he should have
raised that issue in his request for reconsideration. That request for
reconsideration was denied in Martinsen, EEOC Request No. 0520090166,
and we see no reason or new evidence to reopen this matter.
CONCLUSION
We AFFIRM the Agency’s determination finding no breach of the March 28,
2008 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), 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 (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
April 18, 2012
__________________
Date
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0120112002
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120112002