David W. Marthaler, Complainant,v.Michael B. Mukasey, Attorney General, Department of Justice, Agency.

Equal Employment Opportunity CommissionFeb 12, 2009
0120083724 (E.E.O.C. Feb. 12, 2009)

0120083724

02-12-2009

David W. Marthaler, Complainant, v. Michael B. Mukasey, Attorney General, Department of Justice, Agency.


David W. Marthaler,

Complainant,

v.

Michael B. Mukasey,

Attorney General,

Department of Justice,

Agency.

Appeal No. 0120083724

Agency No. F056055

DECISION

Complainant filed a timely appeal with this Commission from a final

decision (FAD) by the agency dated July 21, 2008, finding that it was in

compliance with the terms of the October 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:

As soon as reasonably possible, not to exceed thirty (30) business

days from the date of dismissal of the complaint, the agency will seal

the Performance Appraisal Report, dated May 16, 2005, in complainant's

official personnel file.

By letter to the agency dated July 7, 2008 and also through his subsequent

appeal statement, complainant alleged that the agency was in breach of the

settlement agreement, and requested that the agency specifically implement

its terms. Specifically, complainant alleged, "the agreement was that

the 'information contained' in the disputed performance appraisal report

would be sealed, separate from the complainant's performance file."

In its July 21, 2008 FAD and appeal brief, the agency responded that there

was no such agreement contained in the settlement agreement, which is

plainly limited to a specific document, the Performance Appraisal Report,

dated May 16, 2005. Therefore, the agency maintains that there was no

obligation for it to search for and seal any documents that might contain

some information that was also included in the performance appraisal

report.

Complainant's appeal suggests that the agency intentionally tried to

circumvent the intent of the settlement agreement by taking negative

information about complainant from the performance appraisal report

and including it in another document. The agency emphasized that there

is no record evidence offered by complainant to show that it created a

document and backdated it to somehow circumvent the settlement agreement.

The parties agreed that the agency would seal the performance appraisal

report, and the agency did remove the performance appraisal report from

complainant's official personnel file. The agency maintains that there

is no basis for a finding that it breached the settlement agreement in

this matter.

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).

The burden is on the party alleging breach to establish that a breach

has occurred. Based on the evidence in the record, the Commission

finds that complainant has not shown that the agency has breached the

settlement agreement. Recognizing that complainant details his own

account in several letters to the agency, the Commission is not swayed in

finding that the agency has breached the settlement agreement at issue

in this matter. Accordingly, the agency's final decision finding no

settlement breach is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M1208)

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 (S0408)

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 (Z1008)

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

February 12, 2009

__________________

Date

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0120083724

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

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0120083724