01A03604
07-27-2000
Dean R. Stillwell, Complainant, v. William S. Cohen, Secretary, Department of Defense, (Defense Logistics Agency), Agency.
Dean R. Stillwell v. Defense Logistics Agency
01A03604
July 27, 2000
.
Dean R. Stillwell,
Complainant,
v.
William S. Cohen,
Secretary,
Department of Defense,
(Defense Logistics Agency),
Agency.
Appeal No. 01A03604
Agency No. DT-97-070
DECISION
Complainant filed a timely appeal with this Commission from a final
decision (FAD) by the agency dated May 12, 2000, finding that it was in
compliance with the terms of the December 7, 1998 settlement agreement
into which the parties entered.<1> See 64 Fed. Reg. 37,644, 37,659,
37,660 (1999)(to be codified and hereinafter referred to as EEOC
Regulation 29 C.F.R. � 1614.402); 29 C.F.R. � 1614.504(b); and 64
Fed. Reg. 37,644, 37,659 (1999)(to be codified at 29 C.F.R. � 1614.405).
A review of the record reveals that, on September 9, 1997, complainant
filed a complaint claiming unlawful employment discrimination based on
physical disability. On September 30, 1997, the agency issued a decision
dismissing the complaint for failure to state a claim. Subsequently,
complainant appealed the decision to the Commission. The Commission
found that the complaint stated a claim and remanded the case to the
agency for further processing. See Stillwell v. Defense Logistics
Agency, EEOC Appeal No. 01990894 (October 19, 1998).
Thereafter, complainant and the agency participated in mediation.
On December 7, 1998 a �Resolution Agreement and General Release� was
executed.
The settlement agreement provided, in pertinent part, that:
[Complainant] will be assigned an EEO representative within 60 days
to assist him with the Defense Logistics Agency's (DLA) Affirmative
Employment Program for People with Disabilities (PWD). A representative
will be assigned from the Equal Employment Office, Defense Distribution
Center (DDC) located in New Cumberland, PA. The representative will
be actively involved in the program and provide updated information
pertaining to job enhancements (i.e. types of jobs available) and types
of training available to assist [complainant] in a career transition of
his choice. Coordination efforts will be made between [complainant's]
immediate supervisor and the representative to insure success of the
program.
By letter to the agency dated December 10, 1999, complainant alleged
that the agency breached the settlement agreement, and requested that the
agency implement the its terms. Specifically, complainant alleged that
the agency �flatly refuses to comply with or to recognize EEOC directives
on the Affirmative Action Plan for the Disabled.� Complainant argued
that a year after signing the agreement, there has been no progress
made in providing him with affirmative action. Further, complainant
contended that �[n]o progress or career development plan was ever
discussed with me....�
In its May 12, 2000 FAD, the agency concluded that the settlement
agreement had not been breached. Specifically, the agency cited
complainant's own statements and concluded that the EEO representative
did provide assistance, and coordination efforts were made between the
representative and complainant's supervisor. According to the agency,
complainant acknowledged that the representative provided information
regarding the tuition assistance program, advised him regarding the
leadership courses, and discussed the Resolution Agreement with his
supervisor on two occasions.
The EEO regulation set forth at 64 Fed. Reg. 37,644, 37,660 (1999)(to
be codified and hereinafter referred to as 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 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 Commission determines that the plain language of the agreement
requires that the assigned EEO representative will be �actively involved�
and �provide updated information pertaining to job enhancements and types
of training available.� Here, complainant's own statements indicate
that the representative fulfilled the obligations set forth in the
agreement. According to complainant's chronology, on January 4, 1998,
the representative: contacted him and explained two programs; indicated
she was going to speak with his supervisor; and discussed cross-training
with complainant. Although complainant contends that the representative
delayed sending out promised materials, he admits receiving the packet
and the phone number for a local training coordinator that would have
additional information. Further, the representative called again in
March to see how complainant was doing.
Complainant argues that �any training I received thus far is only
because of my efforts, [the EEO representative] has completely
failed to abide by the Resolution Agreement.� We find, however,
that complainant's expectations are not supported by the language
of the agreement. The Resolution Agreement does not set forth, for
example, particular courses or positions that were to be obtained by
the representative for complainant. Rather, the settlement agreement
dictated an affirmative agency obligation to provide complainant with a
representative who would be involved with providing complainant job and
training information. We find that complainant received such information.
Further, complainant argues that there was not a �coordinated effort�
between the representative and his supervisor. However, complainant
notes that his supervisor did receive at least two phone calls from
the representative. Again, we do not find that the agreement required
more from the agency.
Accordingly, the agency's decision finding no breach was proper and is
hereby AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)
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, Acting Director
Office of Federal Operations
July 27, 2000
__________________
Date
1On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.