01985249
10-14-1999
Darrell R. Wagner, Appellant, v. F. Whitten Peters, Acting Secretary, Department of the Air Force, Agency.
Darrell R. Wagner v. Department of the Air Force
01985249
October 14, 1999
Darrell R. Wagner, )
Appellant, )
)
v. ) Appeal No. 01985249
) Agency No. AL900980623
F. Whitten Peters, )
Acting Secretary, )
Department of the Air Force, )
Agency. )
_______________________________)
DECISION
INTRODUCTION
Appellant filed an appeal with this Commission for a determination
regarding whether the settlement agreement which resolved his EEO
complaint was violated by the agency. The final agency decision was dated
May 19, 1998. The appeal was postmarked June 17, 1996. Accordingly,
the appeal is timely (see 29 C.F.R. �1614.401(d) and .504(a) and (b)),
and is accepted in accordance with EEOC Order No. 960.001, as amended.
ISSUE PRESENTED
The issue on appeal is whether the agency violated the terms of its
March 18, 1997 settlement agreement with appellant.
BACKGROUND
The agency and appellant entered into a settlement agreement (settlement)
that became effective on March 18, 1997.<1> The settlement provided,
in pertinent part, that the agency would:
3(a) continue assisting the employee in his efforts to secure a
match through the Voluntary Separation Incentive Program (VSIP)
and subsequently apply for early retirement.<2>
3(b) restore all sick leave used during the period of November 15,
1995 to March 12, 1997.
Appellant, in addition to withdrawing all pending EEO complaints,
agreed that he would "accept a VSIP early retirement if a match [could]
be found."
On March 14, 1998, appellant notified the agency that he considered it to
have violated the terms of the settlement. Specifically, he indicated,
in pertinent part, that:
1) he signed the settlement under false pretenses and duress; and
2) he was never granted a VSIP retirement;<3>
On May 19, 1998, the agency responded to appellant's allegation of
non-compliance. According to the agency, the Civilian Personnel office
was simply unable to find a match for appellant's position.<4> Appellant
was reminded that the settlement did not guarantee that a match would be
found for him, but that efforts would be made to assist him in securing a
match. The agency noted that appellant's name remained in the VSIP until
he withdrew it on March 12, 1998. The agency's response also noted the
fact that management, pursuant to the settlement, restored appellant's
sick leave. Finally, with regard to appellant's accusation that he
was forced to sign the settlement under false pretenses and duress,
the agency stated that:
the facts clearly indicate that you knowingly and willing negotiated for
and received restoration of your sick leave and you were given extra time
to decide on the clarification statement made by the Civilian Personnel
concerning the sick leave.
On appeal, appellant argued, in pertinent part, that the Commission
should declare the settlement "null and void" and direct the agency
to reinstate his former complaint. Although he admitted that his sick
leave had been restored, he claimed that, between March 1997 and March
1998, 14,668 employees were granted VSIP early retirements. Finally,
appellant maintained that the agency's counsel "enjoined" him to sign
the settlement by stating that "he would have the personnel section
temporarily change my job series and grade for one day in order to match
the first available individual's qualifications with mine . . . ."
ANALYSIS AND FINDINGS
With respect to appellant's contention that he signed the settlement
under duress, we find that he failed to establish by a preponderance
of the evidence that he was forced to sign the settlement. We can not
find coercion based solely on appellant's bare assertions, particularly
when the record indicates that he played a central role in ensuring that
paragraph 3(b) was included in the settlement.<5>
With respect to appellant's claim that he signed the settlement under
false pretense, specifically, that he was told that the personnel section
would temporarily change his series and grade in order to facilitate the
finding of a match, we note that paragraph 7 of the settlement provides
that:
employee's signature on this agreement constitutes full and complete
settlement of all pending claims. No other promises or agreements
concerning the issues surrounding the proposed removal action will be
binding unless made in writing and signed by both parties concerned.
We are not persuaded by appellant's contention that he was somehow
mislead by the agency into signing the settlement. He was on notice that
any oral promises, if they occurred, were not binding on the agency.
Settlement agreements are contracts between the complainant and the agency
to which ordinary rules of contract construction apply. 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 any resort to extrinsic
evidence of any nature. See Montgomery Elevator v. Building Engineering
Services, 730 F.2d 377 (5th Cir. 1984).
We do not find that the agency violated the terms of the settlement.
Pursuant to paragraph 3(a) of the settlement, the agency was only
required to continue assisting appellant in his efforts to secure a
match through the VSIP program. Appellant had been in the program since
September 1994; therefore, he was aware of the agency's efforts on
March 12, 1996 when he signed the settlement. The plain meaning of the
settlement, therefore, was that the agency would continuing doing what
it had done up to that point. Thus, the settlement did not impose any
additional responsibilities on the agency. In fact, the record indicates
that, during the six (6) day period between the date appellant signed the
settlement and the date that the Chief of Personnel signed, appellant
was informed by the agency's Legal Representative that the Civilian
Personnel Office (CPO) felt it was already doing everything it needed
to do in order to comply with the VSIP. Since the parties agreed that
the settlement was not "effective" until the date of its last signature,
appellant, if he found the position of the CPO to be unacceptable, was
free to withdraw from the settlement. Finally, if appellant thought
that the agency, by signing the settlement, was incurring additional
responsibilities under the VSIP, he should have insured that language
to that effect was included in the settlement's terms.
If paragraph 3(a) were the only promise contained in the settlement, we
would find that the agency did not provide appellant with consideration
for his promise to withdraw his formal complaint. This determination is
based on the fact that the agency, by its own words, merely continued
doing what it was already obligated to do and did not incur any additional
obligations. We note, however, that the agency also agreed to restore
all sick leave used by appellant during the period of November 15,
1995 to March 12, 1997. According to the affidavit of the agency's
Legal Representative, appellant "negotiated into the agreement the
reinstatement of up to 45-days of sick leave to his leave account which
was not a benefit the agency had originally intended to offer or accept."
On appeal, appellant acknowledged that his sick leave was restored
pursuant to the settlement. After a careful review of the record, we
find that the agency has complied with the terms of the settlement.
CONCLUSION
Accordingly, the agency's determination that it did not breach the terms
of the March 18, 1997 settlement was proper and it is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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:
Oct. 14, 1999
DATE Carlton Hadden, Acting Director
1Although appellant signed the settlement on March 12, 1997, the signature
of the agency's Chief of Personnel was not obtained until March 18, 1997.
According to the terms of the settlement, it became effective upon the
date of the last signature.
2A-1, an agency Personnel Management Specialist, stated that:
[the VSIP] works when an employee at another installation is being put
under Reduction-in-Force (RIF) procedures and has no other in-house offers
for placement. This person registers for priority placement at other
installations (at their option if outside their own local commuting area)
through the DOD Priority Placement Program (PPP). Employees at a non-RIF
or non-closure base can register in the same PPP system stating that
they are willing to vacate their position for the RIFd [sic] person by
retiring or resigning with a bonus. However, there is never a guarantee
that a 'match' will be made and a bonus given.
3Appellant withdrew from the program on March 12, 1998.
4According to A-1, appellant applied for and was accepted in the VSIP in
September 1994. Although he was promptly placed into the system, she
maintained that he only received "a few possible matches." A-1 noted,
however, that the matches were found to be either not qualified by the
losing installation's personnel office or were placed elsewhere.
5See Affidavit of the agency's Legal Representative.