0120090900
03-31-2009
Mervyn O. Webb, Complainant, v. Pete Geren, Secretary, Department of the Army, Agency.
Mervyn O. Webb,
Complainant,
v.
Pete Geren,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120090900
Agency No. ARREDSTON08FEB00566
DECISION
Complainant filed a timely appeal with this Commission from a final
decision (FAD) by the agency dated September 5, 2008, finding that it was
in compliance with the terms of the June 5, 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:
The agency agrees to review the February 29, 2008, memorandum and the
reasons behind it and make an evaluation whether the information will be
considered in complainant's annual performance appraisal no later than
the end of June 2008. If determined the reasons behind the memorandum
are unfounded, his rating and reviewing official will be directed to
disregard the February 29, 2008 counseling memorandum and it will not
be considered in complainant's appraisal. Regardless of the outcome of
the evaluation, the February 29, 2008, memorandum will be destroyed and
removed from the record after the issuance of complainant's appraisal.
By letter to the agency dated August 15, 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 remove the February 29, 2008, Counseling
Memorandum from his personnel records.
In its September 5, 2008 FAD, the agency concluded that it has
substantially complied with the terms of the settlement agreement.
Specifically, management acknowledged that as of June 30, 2008, it had
not removed the subject Counseling Memorandum; however, on August 26,
2008, the subject Counseling Memorandum was destroyed in the presence of
witnesses. While it is clear that this disputed term of the settlement
was not completed within the required timeframe, the agency maintained
that the record contains no evidence that this untimely compliance
harmed complainant. As such, the record indicates that the agency
has substantially complied with the terms of the settlement agreement.
The agency asserted that a breach of contract has not occurred.
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).
The burden is on the party alleging breach to establish that a breach
has occurred. Based on the evidence in the record, the Commission
finds that complainant has not shown that the agency has breached the
settlement agreement at issue. Recognizing that complainant details
his own account in several letters to the agency, the Commission is not
swayed in finding that the agency has breached the settlement agreement
in this matter.1 Accordingly, the agency's final decision finding no
settlement breach is AFFIRMED.
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
March 31, 2009
__________________
Date
1 We note that on appeal, complainant argues that a "smear campaign"
has been lodged against him in retaliation for having asserted his rights
within the workplace. Complainant is advised that if he wishes to pursue,
through the EEO process, the additional reprisal claims he raised for
the first time on appeal, he shall initiate contact with an EEO Counselor
within 15 days after he receives this decision. The Commission advises
the agency that if complainant seeks EEO counseling regarding the new
claims within the above 15-day period, the date complainant filed the
appeal statement in which he raised these claims with the agency shall
be deemed to be the date of the initial EEO contact, unless he previously
contacted a counselor regarding these matters, in which case the earlier
date would serve as the EEO Counselor contact date. Cf. Alexander
J. Qatsha v. Department of the Navy, EEOC Request No. 05970201 (January
16, 1998).
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0120090900
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120090900