0120113172
12-08-2011
Mathias Ntembo Konge, Complainant, v. Leon E. Panetta, Secretary, Department of Defense (Army & Air Force Exchange Service), Agency.
Mathias Ntembo Konge,
Complainant,
v.
Leon E. Panetta,
Secretary,
Department of Defense
(Army & Air Force Exchange Service),
Agency.
Appeal No. 0120113172
Agency No. AAFES261010
DECISION
Complainant filed a timely appeal with this Commission from a final
decision (FAD) by the Agency dated May 25, 2011, finding that it was
in compliance with the terms of the 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.
BACKGROUND
Believing that the Agency subjected him to unlawful discrimination,
Complainant contacted an Agency EEO Counselor to initiate the EEO
complaint process. On September 29, 2010, Complainant and the Agency
entered into a settlement agreement to resolve the matter. The settlement
agreement provided, in pertinent part, that:
(2a) [Complainant] will receive an additional 20 hours of hands on,
one-on-one training provided by either an assigned supervisor and/or
manager related to computer use, AAFES internet and cash register
operations. [Complainant] will be required to sign a training roster
upon completion of each training session. The training period will
begin on or about 01 October 2010 and will be completed no later than
30 November 2010.
(2c) AAFES will conduct EEO training for all employees within the
branch where [Complainant] is assigned within 60 days from the date of
this agreement.
By letter to the Agency dated February 15, 2011, 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 started the training October 19, 2010 and it ended
on October 31, 2010. Complainant felt his training was rushed Complainant
also stated that the EEO training was not completed until January 2011.
In its May 25, 2011 FAD, the Agency concluded it was not in breach
of the agreement. The Agency noted Complainant received 2 hours of
training on 10 different dates between October 19 and November 3, 2010,
which was verified with training rosters. The Agency noted that the
agreement provided for 20 hours of training, not that Complainant would
be trained from October 1, 2010 to November 30, 2010. Further, the Agency
stated that EEO training was conducted November 8-10, 2010, but because
of scheduling conflicts 26 employees took the training January 5-6, 2011.
ANALYSIS
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. Dep’t of Def., 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. Dep’t 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. U.S. Postal Serv.,
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 Agency provided evidence that Complainant was
given the training promised- 20 additional hours. Training rosters
were provided. Additionally the EEO training was held and even if it
was not within the time frame promised, such delay was de minimus.
As such the Commission finds the Agency was not in breach of the
agreement. The Agency’s decision is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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 (S0610)
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 (Z0610)
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
December 8, 2011
__________________
Date
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0120113172
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120113172