0120092281
08-13-2009
John E. Schweedler, Complainant, v. Ray H. LaHood, Secretary, Department of Transportation, Agency.
John E. Schweedler,
Complainant,
v.
Ray H. LaHood,
Secretary,
Department of Transportation,
Agency.
Appeal No. 0120092281
Agency No. 200822163FAA
DECISION
Complainant filed a timely appeal with this Commission from a final
decision (FAD) by the agency dated March 16, 2009, finding that it
was in compliance with the terms of the September 29, 2008 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:
(2a) For the Cycle Year 2007 Contribution Assessment Decision Aid for
the Aggrieved, [complainant], the agency shall remove the language on
the Summary Page, second bullet from the bottom of the narrative to wit:
"[complainant] used 168% of his earned sick leave during this rating
cycle, this is far more than the ATO's goal of 93%." The language shall
be removed by re-accomplishing the document and deleting the language so
there is no evidence of modification; Once the new Aid is completed,
all older versions in the Human Resources Office at Denver Center and
any copy maintained by the supervisor shall be destroyed. The modified
Aid shall be filed in the original version's place. The agency, [named
individual] will provide a copy to the aggrieved person. This will be
accomplished no later than October 31, 2008.
(2b) The Denver Center Human resources Office will educate Frontline
and Operations Managers in Charge (OMIC) on the proper use of references
about sick leave abuse in performance documents. In other words,
managers will not make mention or consider an individual's use of sick
leave unless there is documented abuse of sick leave. One of the ways
Denver Center Human
Resources shall do this is that they will issue written guidance
to be distributed to Front Line Managers and OMIC. They will
provide a copy of this written guidance to the Aggrieved Person.
This will be accomplished no later than October 31, 2008.
By letter to the agency dated November 21, 2008, complainant alleged that
the agency was in breach of the settlement agreement, and requested that
the agency specifically implement its terms. Specifically, complainant
alleged that the agency failed to destroy all remaining copies of the
memorandum referred to in provision 2a of the agreement. However, in his
appeal statement, complainant acknowledges that by correspondence dated
February 23, 2009, the agency advised complainant to his satisfaction,
that the memorandum in question had in fact been modified and destroyed
in full compliance with the settlement between the parties.
Complainant maintains, however in the instant appeal, that the a
February 17,2009 memorandum to agency managers, operations managers
and support managers includes references to sick leave and addresses
how managers should approach and resolve sick leave issues and or
abuses with an employee. Complainant takes issue with the wording in a
memorandum dated October 30, 2008 which he received on February 17, 2009.
Complainant alleges that the memorandum contains language which violates
provision 2b of the September 29,2008 settlement agreement.
In its March 16, 2009 FAD, the agency concluded it was in full compliance
with the specific provisions of the settlement agreement. The agency
indicated that as provided in the agreement, the agency educated
managers regarding the proper use of references about sick leave abuse
in performance documents by providing written guidance dated February
17, 2009. On appeal, however, complainant maintains his argument that
the agency's memorandum violated the "gist" of the settlement agreement
in that managers are not to mention or consider sick leave usage unless
there is documented abuse.
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, the Commission finds that complainant has failed
to demonstrate that the agency breached the agreement as alleged.
Specifically, we find that the agreement obligated the agency to educate
agency managers and supervisor regarding the proper use of references
about sick leave abuse in performance documents. In compliance with
this provision, the agency indicates that a memorandum dated October
30, 2008 was distributed to all managers at the agency's Denver Center
facility providing advice and guidance regarding performance documents
and the issue of leave use and abuses. The agency further indicates, and
complainant acknowledges that he was provided a copy of said memorandum on
February 17, 2009. Complainant argues on appeal that the October 30, 2008
memorandum issued to agency managers should have contained the following
statement; "managers will not make mention or consider an individual's
use of sick leave unless there is documented abuse of sick leave."
However, the Commission finds that if complainant had intended for the
agency to use specific language to educate agency managers regarding
the discussion of sick leave in performance documents, he should have
negotiated such language into the settlement agreement. Therefore,
the Commission finds that complainant has failed to demonstrate that
the agency breached the agreement as alleged.
Accordingly, the agency's determination of compliance with the September
29, 2008 settlement agreement is hereby affirmed for the reasons set
forth herein.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 77960,
Washington, DC 20013. 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 (S0408)
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 (Z1008)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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
August 13, 2009
__________________
Date
2
0120092281
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
5
0120092281