01a02187
11-14-2000
Noah J. Castellano v. Department of the Air Force
01A02187
November 14, 2000
.
Noah J. Castellano,
Complainant,
v.
F. Whitten Peters,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 01A02187
Agency No. AL900000259
DECISION
The Commission finds that the agency's December 21, 1999 letter of
determination dismissing Complainant's breach of settlement agreement
claim, is proper pursuant to the regulation set forth at 29 C.F.R. �
1614.504(a).<1>
By settlement agreement reached on September 29, 1999, the parties
agreed that Complainant would apply for voluntary separation and would
complete all necessary documents associated with the VSIP II program.
Complainant also agreed to accept his separation within two pay periods of
being notified approval. The agreement also provided that �upon approval
and match of VSIP II, the agency will make it available to the Complainant
commensurate with paragraph 2 above to be effective 22 October 1999".
On December 9, 1999, Complainant informed the agency that the settlement
agreement had been breached because the agency failed to timely process
his separation. Complainant also claimed that the agreement had been
breached when the agency �attempted to impeach� his testimony in a
hearing before the Utah Workforce Services Appeals Tribunal�.
By letter dated December 21, 1999, the agency found that no breach had
occurred. The agency noted that on December 3, 1999, a Request for
Personnel Action (SF 52) had been signed by the Chief, Depot Supply
Division initiating the separation. The agency also found that the
agreement did not include any provisions concerning the Utah Work Force
Services Appeals Tribunal.
EEOC Regulations provide 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 complainant 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. USPS, EEOC Request No. 05931097 (Apr. 29, 1994) (citing Hyon
v. USPS, 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 Commission notes that if a complaint is reinstated
for further processing, then the parties must be returned to the status
quo at the time that the parties entered into the settlement agreement,
which requires that a complainant return any monies received pursuant to
the settlement agreement. See, e.g., Armour v. Department of Defense,
EEOC Appeal No. 01965593 (June 24, 1997); Komiskey v. Department of the
Army, EEOC Appeal No. 01955696 (September 5, 1996).
After review of the terms of the settlement agreement and the record
we find that the agency has complied with the terms of the settlement
agreement. Accordingly, the agency's final decision is hereby AFFIRMED.
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 14, 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.