George Alexander, Complainant,v.Gregory R. Dahlberg, Acting Secretary, Department of the Army, Agency.

Equal Employment Opportunity CommissionFeb 6, 2001
01A05900 (E.E.O.C. Feb. 6, 2001)

01A05900

02-06-2001

George Alexander, Complainant, v. Gregory R. Dahlberg, Acting Secretary, Department of the Army, Agency.


George Alexander v. Department of the Army

01A05900

February 6, 2001

.

George Alexander,

Complainant,

v.

Gregory R. Dahlberg,

Acting Secretary,

Department of the Army,

Agency.

Appeal No. 01A05900

Agency No. ANBKFO0003A0170

DECISION

The Commission finds that the agency's August 16, 2000 final decision

which dismissed complainant's breach of settlement agreement claim was

proper pursuant to the provisions of 29 C.F.R. � 1614.504.<1>

The record shows that on May 17, 2000, complainant and the agency reached

a settlement agreement which provided, inter alia, that

�the agency agrees the complainant's schedule will be adjusted so that

he will not be scheduled to work on his religious Sabbath ... upon

the complainant's indication that he desires to pursue a disability

retirement, Mr. [DB] or someone at his direction, will provide

the complainant personal assistance in making appointments with the

appropriate personnel and in completing the necessary documents ... the

complainant will be paid the amount of $2,000.00�.

By memorandum to the agency dated July 6, 2000, complainant claimed in

a general fashion that the provision referenced above was breached, as

well as a confidentiality provision contained in the agreement. In a

decision dated August 16, 2000, the agency found that the agency was in

full compliance with the terms of the May 17, 2000 settlement agreement.

The record shows that after the settlement agreement was reached, a

payment in the amount of two thousand dollars was issued to complainant

on May 30, 2000, by the Chief of the Management, Operations and Business

Office. By electronic message dated June 7, 2000, complainant was

informed to �please advise as to where you are in this matter [retirement]

and if DCFA Administrative assistance is required�. Finally, a review of

the agency's work schedule shows that since June 4, 2000, complainant has

been allowed to schedule his regular days off on Fridays and Saturdays

in order to allow him to observe the Sabbath.

EEOC Regulation 29 C.F.R. �1614.504(a) provides that any settlement

agreement knowingly and voluntarily agreed to by the parties shall be

binding on both parties. If the complainant believes that the agency

has failed to comply with the terms of a settlement agreement, then the

complainant shall notify the EEO Director of the alleged noncompliance

"within 30 days of when the complainant knew or should have known of

the alleged noncompliance." 29 C.F.R. �1614.504(a). The complainant

may request that the terms of the settlement agreement be specifically

implemented or request that the complaint be reinstated for further

processing from the point processing ceased. Id.

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

(Aug. 23, 1990); In re Chicago & E.I. Ry. Co., 94 F.2d 296 (7th

Cir. 1938). In reviewing settlement agreements to determine if there is

a breach, the Commission is often required to ascertain the intent of the

parties and will generally rely on the plain meaning rule. Wong v. United

States Postal Service, EEOC Request No. 05931097 (Apr. 29, 1994) (citing

Hyon v. United States Postal Service, EEOC Request No. 05910787 (Dec. 2,

1991)). This rule states that if the writing appears to be plain and

unambiguous on its face, then its meaning must be determined from the

four corners of the instrument without any resort to extrinsic evidence

of any nature. Id. (citing Montgomery Elevator v. Building Engineering

Service, 730 F.2d 377 (5th Cir. 1984)).

The plain language of the agreement required the agency to issue a

payment of two thousand dollars to complainant. The agency was also

required to assist complainant in his retirement application and to allow

him to schedule his regular days off in order to observe the Sabbath.

The record shows that all these requirements were promptly met by

the agency. Moreover, the record contains no evidence reflecting that

the agency breached the confidentiality provision of the settlement

agreement, as asserted by complainant in his July 6, 2000 memorandum

claiming settlement breach. Based on the foregoing, we find that

complainant's bare claims that the agency has not complied are not

sufficient to reverse the agency's final determination. Accordingly,

the agency's final decision was proper and is hereby AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0900)

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

February 6, 2001

__________________

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 29 C.F.R. Part 1614 in deciding the

present appeal. The regulations, as amended, may also be found at the

Commission's website at www.eeoc.gov.