01996200
05-25-2000
Kevin Barzey, Complainant, v. William M. Daley, Secretary, Department of Commerce, Agency.
Kevin Barzey v. Department of Commerce
01996200
May 25, 2000
Kevin Barzey, )
Complainant, )
)
v. ) Appeal No. 01996200
) Agency No. 90-36-0363
William M. Daley, )
Secretary, )
Department of Commerce, )
Agency. )
__________________________________ )
DECISION
Complainant filed the instant appeal alleging that the agency breached the
settlement agreement entered into by the parties on May 10, 1991.<1>
The settlement agreement provided that the agency would pay complainant
$2,000.00; change complainant's involuntary termination to resignation;
and:
[3] c. Expunge from the Complainant's Official Personnel File all records
relating to unsatisfactory performance.
The agreement further provided:
The Complainant agrees that the terms of this settlement agreement shall
remain confidential and that such terms will not be disclosed to any
person or entity without an official need to know such information.
Complainant alleged by letter dated June 14, 1999, that the agency
breached the agreement because his Official Personnel File had not been
expunged of all records relating to unsatisfactory performance. There is
no agency decision in the record, but on appeal the agency asserts that
it did not breach the settlement agreement and that complainant's claim
of breach was not timely raised. The Commission shall consider the agency
brief on appeal as a decision finding no breach. The regulation set forth
at 64 Fed. Reg 37,644, 37,660 (1999) (to be codified as and hereinafter
cited as 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 appellant 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 investigation conducted by the agency failed to corroborate
complainant's assertion that agency employees knew of complainant's
unsatisfactory performance. In fact, at least one witness stated that
complainant asked her to state that a co-worker had informed her (the
witness), that the co-worker was aware of complainant's complaint history
and knew that complainant had filed an EEO complaint. The witness further
stated that complainant offered to pay her a "thousand dollars" for
making such a statement, even though it was not true. The EEO Counselor
stated that her review of complainant's Official Personnel File failed to
reveal any documents relating to complainant's unsatisfactory performance.
Complainant has failed to show that the agency breached provision 3(c) of
the settlement agreement. To the extent that complainant is alleging that
the agency breached provision 4 of the agreement, we find that complainant
has failed to show such a breach. Because of our disposition we do not
address the agency's contention that provision 4 only imposed requirements
on complainant and not the agency. Therefore, we find that complainant
has failed to show that the agency breached the settlement agreement.<2>
The agency's determination finding that the agency did not breach the
settlement agreement is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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); 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 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)
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:
May 25, 2000
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
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.
2Because of our disposition we do not address whether complainant's
breach claim was timely raised.