01A55516
05-09-2006
Donald R. Thomas, Complainant, v. Dr. Francis J. Harvey, Secretary, Department of the Army, Agency.
Donald R. Thomas,
Complainant,
v.
Dr. Francis J. Harvey,
Secretary,
Department of the Army,
Agency.
Appeal No. 01A55516
Agency No. ARHOOD03JUL006
DECISION
JURISDICTION
Complainant filed a timely appeal with this Commission from a final
decision (FAD) by the agency dated July 6, 2005, finding that it was in
compliance with the terms of the December 11, 2003 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:
3a. Management will cancel the 14-day suspension, dated 16 June 2003,
and restore back pay for this period.
3d. Management will restore 40 hours sick leave.
3f. All actions required by this agreement will be initiated within
30 days of this agreement.
By letter to the agency dated May 31, 2005, complainant alleged that
the agency was in breach of the settlement agreement, and requested
that the agency specifically implement its terms and pay him $1,000.00
in attorney's fees. Specifically, complainant alleged that the agency
failed to comply with provisions 3a, 3d, and 3f. Complainant maintained
that the agency retained documents related to his suspension in management
files and failed to restore sick leave to complainant within 30 days of
the date the agreement was executed. In its July 6, 2005 FAD, the agency
first found that complainant untimely raised his breach claim. The FAD
also found that the agency had complied with the terms of the agreement.
On appeal, complainant argues that the agency improperly found that his
breach claim was untimely raised. Complainant contends that although
he attempted to achieve compliance with the agreement through informal
attempts before formally filing his breach claim, the agency "should
welcome informal attempts at resolution rather than the more costly
and time-consuming formal process." Complainant further argues that,
although the agency ultimately removed mention of his suspension from
agency files, the documents were only removed after he alleged breach.
Timeliness
EEOC Regulation 29 C.F.R. 1614.504(a) provides that if a complainant
believes that the agency has failed to comply with the terms of a
settlement agreement, the complainant shall notify the EEO Director in
writing of the alleged noncompliance within thirty days of the alleged
noncompliance.
In this case, the record reveals that complainant submitted his breach
claim to the EEO Office on May 31, 2005. The agency contends that
based upon the agency's response to a Freedom of Information Act (FOIA)
request that complainant received on December 15, 2004, complainant knew
what was contained in his personnel files and should have alleged breach
within 30 days of December 15, 2004. The record contains a copy of an
email message from an agency official wherein the official stated that
complainant received a response to his FOIA request on December 15, 2005.
Complainant contends that he attempted to resolve the matter informally
before formally alleging breach. However, waiving the time limits
until complainants exhaust informal methods of resolving claims would
undermine the purpose of the time limits contained in EEO Regulations,
which we decline to do here. However, because the merits of complainant's
breach claim are rather easily ascertained in this case, the Commission
nonetheless exercises its appellate discretion to address the merits of
complainant's breach claim below.
Breach Claim
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, provision 3a states that management will cancel
complainant's 14-day suspension and restore back pay for this period.
Apparently, complainant discovered that his personnel records contained
three documents that mentioned his suspension after he received a response
to his FOIA request on December 15, 2003. The record contains a copy from
an agency official dated June 23, 2005 in which the official stated that
he personally shredded all records in complainant's personnel files that
pertained to his 14-day suspension. On appeal, complainant acknowledges
that the documents regarding his suspension were destroyed by June 2005.
The record also contains a copy of complainant's Master Pay History
for the pay period ending January 10, 2004 reflecting that complainant
was credited with 80 hours of leave for the 14-day suspension and paid
$1,484.80.
Provision 3d states that management will restore 40 hours of sick leave
to complainant. The record contains an affidavit from complainant's
supervisor wherein he stated that immediately after the settlement
agreement was executed, he began the process of complying with provision
3d. The supervisor stated that he instructed the timekeeper to input
the data to ensure complainant received 40 hours of sick leave credit,
and the computer system appeared to accept the inputted change; however,
complainant informed him that the changes were not reflected on his
next leave statement. The supervisor stated that he tried to input the
changes again, but complainant notified him that the changes were still
not reflected on his leave statement. He stated that after working
with other management officials and a customer service representative,
the changes were successfully made on February 17, 2004. The record
contains a statement from a payroll official that stated that the agency
credited complainant with 40 hours of sick leave for the pay period
ending February 21, 2004.
Upon review of these matters, we find that the agency complied with
the terms of the agreement. Complainant acknowledges that the promised
actions were undertaken by the agency, but not within the 30-day time
limit contained in provision 3f. The record reflects that the agency
ultimately restored 40 hours of sick leave to complainant on February
14, 2004, after making unsuccessful attempts to restore the leave within
the 30-day period. The record further reveals that the agency credited
complainant with the hours and pay he lost during the suspension by
the pay period ending January 10, 2004, within the 30-day time period.
Clearly, the agency did not remove references to his suspension from
the agency file until after the matter was brought to its attention
in December 2003. Nevertheless, the Commission has found substantial
compliance with the terms of a settlement agreement where agencies have
committed, in good faith, a technical breach of a provision of the
agreement which did not undermine its purpose or effect. Moreover,
we have held that the failure to satisfy a time frame specified in
a settlement agreement does not prevent a finding of substantial
compliance of its terms, especially when all required actions were
subsequently completed. Lazarte v. Department of the Interior, EEOC
Appeal No. 01954274 (April 25, 1996); Sortino v. United States Postal
Service, EEOC Request No. 05950721 (November 21, 1996), citing Baron
v. Department of the Treasury, EEOC Request No. 05930277 (September 30,
1993). We further note that removal of complainant's suspension was not
explicitly mentioned in the terms of the agreement,1 but arguably was
contemplated by the parties when they agreed to "cancel" the suspension.
We find that because there is no evidence that the agency acted in bad
faith in this case and complainant received all the benefits promised
in the agreement, the agency has substantially complied with the terms
of the agreement.2
CONCLUSION
Accordingly, the Commission AFFIRMS the agency's final decision finding
no breach.
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:
______________________________ _May 9,
2006____________
Carlton M. Hadden, Director Date
Office of Federal Operations
1 The term "cancel" used in provision 3f can be defined as "to annul
or invalidate" or as "to indicate that it may not be used again."
The American Heritage Dictionary of the English Language, Fourth Edition
(4th ed. 2000).
2 We note that complainant cannot be awarded attorney's fees in this
case because he did not prevail on his breach claim. Buckhannon Bd. &
Care Home, Inc. v. West Virginia Dept. of Health and Human Services,
532 U.S. 598 ( 2001); See also Spriesterbach v. United States Postal
Service, EEOC Request No. 05990158 (November 27, 2001).
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01A55516
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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01A55516