01a03348
11-21-2000
John Howard, Complainant, v. F. Whitten Peters, Secretary, Department of the Air Force, Agency.
John Howard v. Department of the Air Force
01A03348
November 21, 2000
.
John Howard,
Complainant,
v.
F. Whitten Peters,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 01A03348
Agency No. HH2W94039
DECISION
INTRODUCTION
Complainant filed a timely appeal with the Equal Employment Opportunity
Commission concerning an alleged breach of a settlement agreement into
which he entered with the agency on September 24, 1996.<1> See 29
C.F.R. � 1614.402; 29 C.F.R. � 1614.504(b); and 29 C.F.R. � 1614.405.
BACKGROUND
The settlement agreement at issue herein provided, in pertinent part,
that a designated agency official would �respond to any inquiries from
prospective employers within one year of the date of [the settlement]
agreement by stating the dates of complainant's employment, positions
held, salaries earned, that he resigned for personal reasons, and that
his last performance evaluation was �fully successful.'� This portion
of the agreement, found in paragraph 2(e), further provided that �no
other information [would be] stated or implied� by the designated agency
official.
By letter to the agency dated February 23, 2000, complainant alleged
that the agency breached paragraph 2(e), and requested that the agency
specifically implement its terms. Specifically, complainant alleged
that he was informed by a union official at the Illinois Environmental
Protection Agency (IEPA) that a former agency employee had reported to the
IEPA that complainant had been fired from the agency. According to the
letter, the former agency employee claimed that a high ranking official
of the agency's Base Conversion division had reported this information
to him. When the letter did not solicit a response from the agency,
complainant filed the present appeal.
ANALYSIS AND FINDINGS
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. EEOC Regulation 29 C.F.R. � 1614.504(a).
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 O, Hyon 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 present case, the relevant provision of the settlement agreement
essentially stated that a designated agency official was charged with
responding to prospective employers regarding specified information
in complainant's employment record. Here, complainant alleged that
a non-designated official, the high ranking official from the agency's
Base Conversion division, supplied a former agency employee information
that not even the designated agency official was authorized to supply.
In turn, the former employee supplied the IEPA with the unauthorized
information.
For a number of reasons, we find there is no breach in this case.
Firstly, the agreement provided that only specified information would
be provided to prospective employers. In this case, complainant alleged
that the agency provided unauthorized information to a former employee,
not a prospective employer. Secondly, information in the evidentiary
file is unclear as to whether the IEPA, the employer that eventually
received the unauthorized information, was a prospective employer.<2>
And thirdly, there is no evidence that the high ranking official from the
agency's Base Conversion division, the agency official which supplied
the unauthorized information, supplied that information in the course
of his employment with the agency.
CONCLUSION
Based on the foregoing and after a careful review of the record, including
complainant's contentions on appeal, and arguments and evidence not
specifically addressed in this decision, we hereby find that the agency
did not breach the settlement agreement into which it entered with
complainant.
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
November 21, 2000
__________________
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.
2We note that in the letter dated February 23, 2000, the document in
which complainant first alleged that there was a breach of the settlement
agreement, the complainant stated that the IEPA was an agency where
complainant had been employed. But that statement, by itself, does not
clearly indicate that the IEPA was a prospective employer.