01A63455
10-18-2006
Dave Lewis, III, Complainant, v. Dr. Francis J. Harvey, Secretary, Department of the Army, Agency.
Dave Lewis, III,
Complainant,
v.
Dr. Francis J. Harvey,
Secretary,
Department of the Army,
Agency.
Appeal No. 01A63455
Agency No. ARCEMEMP05NOV12171
DECISION
Complainant filed a timely appeal with this Commission from a final
decision (FAD) by the agency dated May 4, 2005, finding that it was in
compliance with the terms of the January 25, 2006 settlement agreement into
which the parties entered. See 29 C.F.R. � 1614.402; 29 C.F.R. �
1614.504(b); and 29 C.F.R. � 1614.405.
The settlement agreement provided, in pertinent part, that:
3. The Agency agrees:
a. That within 90 days after the execution of this agreement
by all parties, [S1], Deputy, Operations Division, will
obtain and authorize department training, such as:
Effective Communication or Respect for Others, to include
[E1] and [E2] and additional employees as deemed
appropriate by management.
b. The training for both [E1] and [E2] is contingent upon
their continued employment with the Corps of Engineers,
Memphis District, through, 1 July 2006.
c. [S1] or [S2], Chief, Operations Division, will meet with
[E1] and [E2], and others as deemed appropriate, on a
monthly basis for a period of three months upon completion
of the subject training in paragraph a.. These monthly
meetings will evaluate the success of the training and
measure the need for continued improvement.
d. [S1] will ensure the compliance and execution of the
provisions outlined in this negotiated settlement
agreement.
By letter to the agency dated April 10, 2006, 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 take action against E1 and E2 for continuing to
mistreat him through the use of profanity, excessive harassment, and
threats to "do away with [his] job." Complainant additionally alleged that
management failed to provide other classes under the agreement.
In its May 4, 2005 FAD, the agency concluded that it was not in breach of
the January 25, 2006 settlement agreement. The agency explained that
documentation, by way of sign-in sheets provided by the Memphis District
Training Coordinator, of the authorized training entitled "Managing
Conflict Constructively" showed that management had complied with the terms
of the January 2006 settlement agreement. Additionally, the agency
explained that S1 approved travel and official time for the training, which
ultimately took place on March 29, 2006. Further, the agency explained
that term (c) of the January 2006 settlement agreement provided for monthly
monitoring to last for a period of three months. Thus, the agency
explained the complainant's interpretation of the January 2006 settlement
agreement was not logical as he claimed noncompliance of the agreement less
than two weeks after attending the March 29, 2006 training.
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. Department of Defense, 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. Department 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. 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 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, the record discloses that the January 2006 settlement
agreement stated that the agency promised to obtain and authorize
department training within ninety days after the execution of the
agreement. The agency further agreed to evaluate the success of the
training and measure the need for continued improvement on a monthly basis
for a period of three months upon completion of the training. An affidavit
dated, April 26, 2006 reveals that S1 verified that E1 and E2 attended the
"Effective Communication or Respect for Others" training, which took place
on March 29, 2006. Additionally, S1 stated that within the month since the
training, she has conducted meetings to evaluate the success of the
training. In a letter dated April 10, 2006, complainant makes additional
claims he was mistreated by E1 and E2 through the use of profanity,
excessive harassment, and threats to "do away with [his] job."
Specifically, the instant settlement agreement did not obligate the agency
to preclude E1 and E2 from treating complainant in a way that he
subjectively found unappealing. However, if complainant believes the
actions are based on discriminatory motives, he has the right to initiate
contact with an EEO Counselor within 45 days of the date of the matter
alleged to be discriminatory. 29 C.F.R. � 1614.105(1). Upon review of the
record, we find that the agency did not breach the January 2006 settlement
agreement.
Accordingly, the agency's decision finding no breach of the January 25,
2006 settlement agreement was proper and is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 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 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 (S0900)
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 (Z1199)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
October 18, 2006
__________________
Date