01a52961
07-29-2005
Eric L. Morgan, Complainant, v. Donald H. Rumsfeld, Secretary, Department of Defense, (Army & Air Force Exchange Service (AAFES)), Agency.
Eric L. Morgan v. Department of Defense
01A52961
July 29, 2005
.
Eric L. Morgan,
Complainant,
v.
Donald H. Rumsfeld,
Secretary,
Department of Defense,
(Army & Air Force Exchange Service (AAFES)),
Agency.
Appeal No. 01A52961
Agency No. 03.086
DECISION
Complainant appeals to the Commission from the agency's February 25,
2005 decision finding no breach of a settlement agreement. On March 3,
2004, the parties resolved complainant's complaints by entering into a
settlement agreement which provided, in pertinent part, that complainant
would receive the following:
2.c. Weight Limit Training will be administered to all stockroom
employees within 30 calendar days of the date of the last signature on
this agreement. This training will be administered by the employees'
first level supervisor.
. . . .
2.h. [Mr. X] will personally instruct [Ms. Y] . . . that [she is]
not to harass the Complainant in any way. This action will take place
not later than 30 calendar days from the date of the last signature on
this agreement.
By letter to the agency dated November 29, 2004, complainant alleged that
the agency was in breach of the settlement agreement. Specifically,
complainant alleged that the agency breached the settlement agreement
since complainant has patiently waited but has never been scheduled for
nor has he received weight limit training to this date. Although it
was not addressed by the agency, we note that complainant also alleged
that the agency breached the settlement agreement since �there have
been numerous incidents of harassment and retaliation by . . . [Ms. Y],
stockroom manager.�
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).
With respect to complainant's allegation that the agency breached the
settlement agreement by failing to administer weight limit training
to complainant, we find that complainant's allegation is untimely.
As the settlement agreement was signed by all parties on March 3, 2004,
complainant should have known of the alleged noncompliance by April 2,
2004. Complainant did not notify the agency, in writing, of his belief
that the agency has failed to comply with the terms of the settlement
agreement, until November 29, 2004, which is beyond the 30-day limitation
period pursuant to 29 C.F.R. � 1614.504(a). Complainant has failed to
present adequate justification to warrant extension of the applicable
limitation period.
With regard to complainant's allegation that the agency breached the
settlement agreement since �there have been numerous incidents of
harassment and retaliation by . . . [Ms. Y], stockroom manager[,]� we
find that complainant is alleging subsequent acts of discrimination.
Pursuant to 29 C.F.R. � 1614.504(c), allegations that subsequent acts
of discrimination violate the settlement agreement shall be processed
as separate complaints. The settlement agreement requires [Mr. X]
to personally instruct [Ms. Y] not to harass complainant in any way.
Complainant does not argue that this instruction was not given.
Complainant's claims of violations regarding harassment by [Ms. X]
constitute claims of subsequent acts of discrimination. The agency
informed complainant of his right to seek EEO counseling regarding
such alleged subsequent acts of discrimination. The record indicates
that complainant filed a complaint dated January 8, 2005, apparently
encompassing these alleged subsequent acts of discrimination. We find
that complainant has failed to show that the agency breached the
settlement agreement.
The agency's decision finding no breach of the settlement agreement
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
July 29, 2005
__________________
Date