Gary L. Rouse, Complainant,v.Daniel R. Glickman, Secretary, Department of Agriculture, Agency.

Equal Employment Opportunity CommissionNov 16, 1999
01986667_r (E.E.O.C. Nov. 16, 1999)

01986667_r

11-16-1999

Gary L. Rouse, Complainant, v. Daniel R. Glickman, Secretary, Department of Agriculture, Agency.


Gary L. Rouse, )

Complainant, )

)

v. ) Appeal No. 01986667

) Agency No. 970263

Daniel R. Glickman, )

Secretary, )

Department of Agriculture, )

Agency. )

______________________________)

DECISION

Complainant timely appealed the agency's final decision not to reinstate

his complaint of unlawful employment discrimination that the parties

had settled.<1> See 64 Fed. Reg. 37,644, 37,659-37,660 (1999) (to

be codified and hereinafter referred to as 29 C.F.R. ��1614.402(a),

1614.504); EEOC Order No. 960, as amended.

The record indicates that complainant filed a formal complaint dated

March 12, 1997, concerning leave, a derogatory comment, and a hostile

work environment. On August 25, 1997, the parties entered into a

settlement agreement, which provided, in pertinent part, that:

The agency would provide complainant with a letter of apology from

the employee who made the derogatory remark and from the Director of

International Programs for handling of the derogatory remark incident.

The agency would review circumstances surrounding the derogatory remark

and take appropriate action. The agency would pay complainant $1,000

of his claim for compensatory damages.

By letter dated February 17, 1998, complainant alleged that the agency

breached the settlement agreement. Specifically, complainant indicated

that he had not received the letters of apology; and he was subjected

to a derogatory remark from his supervisor on November 12, 1997.

Complainant also claimed that the agency failed to comply with a �Last

Chance/Abeyance Agreement� of September 3, 1997, in that he did not

receive a position description for his new position; and he was removed

from the agency on January 30, 1998.

In its final decision, the agency stated that although it had obtained

the apology letters at issue after the settlement agreement, it had

not sent them to complainant. The agency indicated that upon receipt

of complainant's noncompliance letter, it sent those letters to him in

February 1998. With regard to complainant's supervisor's remark, the

agency advised complainant to contact an EEO Counselor if he wished to

further pursue the matter.

In addition, the agency noted that the parties entered into the September

3, 1997 agreement concerning its decision to hold the proposed removal

action of December 11, 1996, in abeyance. The agency indicated that

complainant was, subsequently, removed from the agency effective January

30, 1998, because he violated the terms of the subject agreement.

The agency found that the matters concerning the September 3, 1997

agreement did not fall within the purview of the EEOC regulations since

it did not concern an EEO complaint.

On appeal, complainant acknowledges that he received the letters

of apology at issue only after he sent his noncompliance letter to

the agency. Complainant also indicates that he filed subsequent EEO

complaints concerning his supervisor's remark of November 12, 1997,

and harassment by another individual.

EEOC Regulation 29 C.F.R. �1614.504 provides that if the complainant

believes that the agency failed to comply with the terms of a settlement

agreement, the complainant should notify the Director of Equal Employment

Opportunity, in writing, of the alleged noncompliance with the settlement

agreement, within thirty (30) days of when the complainant knew or should

have known of the alleged noncompliance. The complainant may request that

the terms of the settlement agreement be specifically implemented or,

alternatively, that the complaint be reinstated for further processing

from the point processing ceased.

The agency shall resolve the matter and respond to the complainant,

in writing. If the agency has not responded to the complainant, in

writing, or if the complainant is not satisfied with the agency's attempt

to resolve the matter, the complainant may appeal to the Commission for

a determination as to whether the agency has complied with the terms of

the settlement agreement or final decision.

The Commission has held that settlement agreements are contracts between

the complainant and the agency and it is the intent of the parties

as expressed in the contract, and not some unexpressed intention, that

controls the contract's construction. Eggleston v. Department of Veterans

Affairs, EEOC Request No. 05900795 (August 23, 1990). In addition, the

Commission generally follows the rule that if a 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 v. Building Engineering Services,

730 F.2d 377 (5th Cir. 1984). The Commission has followed this rule

when interpreting settlement agreements. The Commission's policy in

this regard is based on the premise that the face of the agreement best

reflects the understanding of the parties.

Upon review, we find that the agency did not breach the settlement

agreement at issue. The record reveals that after complainant alleged

noncompliance with the settlement agreement, the agency took steps

to cure the alleged breach of the settlement agreement. The record

indicates that the letters of apology at issue were sent to complainant.

On appeal, complainant acknowledges receipt of those letters. We find

that a breach of the settlement agreement occurred, but we also find

that the agency cured the breach. See Covington v. United States Postal

Service, EEOC Appeal No. 01913211 (September 30, 1991).

With regard to complainant contentions that the agency failed to comply

with a Last Chance Agreement of September 3, 1997, we agree with the

agency that this matter is beyond the scope of the EEO settlement

agreement at issue. Complainant is hereby advised to review that

agreement to determine his recourse for any non-compliance. Accordingly,

the agency's decision is hereby AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M1199)

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). 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).

RIGHT TO FILE A CIVIL ACTION (S0993)

It is the position of the Commission that 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.

You should be aware, however, that courts in some jurisdictions have

interpreted the Civil Rights Act of 1991 in a manner suggesting that

a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the

date that you receive this decision. To ensure that your civil action

is considered timely, you are advised to file it WITHIN THIRTY (30)

CALENDAR DAYS from the date that you receive this decision or to consult

an attorney concerning the applicable time period in the jurisdiction

in which your action would be filed. 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 (Z1092)

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:

November 16, 1999

DATE

Carlton

M.

Hadden,

Acting

Director

Office of Federal Operations

CERTIFICATE OF MAILING

For timeliness purposes, the Commission will presume that this decision

was received within five (5) calendar days of mailing. I certify that

the decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

_________________________

__________________________

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.