Paul E. Eason, Complainant,v.Ray Mabus, Secretary, Department of the Navy, Agency.

Equal Employment Opportunity CommissionJun 24, 2010
0120101260 (E.E.O.C. Jun. 24, 2010)

0120101260

06-24-2010

Paul E. Eason, Complainant, v. Ray Mabus, Secretary, Department of the Navy, Agency.


Paul E. Eason,

Complainant,

v.

Ray Mabus,

Secretary,

Department of the Navy,

Agency.

Appeal No. 0120101260

Agency No. DON-09-57095-01451

DECISION

Complainant filed a timely appeal with this Commission from a final Agency

decision dated December 23, 2009, finding that it was in compliance with

the terms of the August 12, 2009 settlement agreement into which the

parties entered. See 29 C.F.R. �� 1614.402; 1614.405; and 1614.504(b).

The settlement agreement provided, in pertinent part, that:

(1) The Agency will allow the Complainant to submit the resignation

letter dated as of 1 October 2009 . . . to be accepted in lieu of

the letter of termination that was issued to him, provided that the

Complainant signs the unaltered Resignation Letter and returns it with

this signed Agreement.

(2) The Agency will keep the Resignation Letter in the Complainant's

personnel file and will remove the termination letter from his personnel

file.

(3) Once this Agreement becomes effective, the Complainant will be

reinstated in Leave Without Pay (LWOP) status retroactive from 6 August

2009 until the resignation date of 1 October 2009, solely to enable the

Complainant to meet the eligibility requirements for early retirement

pursuant to BUPERSINST [Bureau of Naval Personnel Instruction] 5300.10A

section 702(e)(2)(a). . . .

(4) The Agency agrees to provide the attached written

reference from [a department manager], which is hereby deemed

to be acceptable to both parties to the Agreement.

The Complainant hereby withdraws the Formal Complaint dated on or about

6 May 2009 (DON-09-57095-01451).

By letter to the Agency dated November 30, 2009, 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 ensure that he met the eligibility

requirement for early retirement. Complainant stated that the Agency

agreed to place him in a leave without pay (LWOP) status until October

1, 2009 to make sure he met the requirement, but sent him a memo dated

November 12, 2009 indicating he was ineligible.

In its December 23, 2009 final decision, the Agency concluded that it

complied with the August 12 agreement. Specifically, the Agency stated

that it substituted Complainant's resignation letter for its termination

letter, cleansed Complainant's file of any reference to the termination

letter and provided a reference letter to Complainant. The Agency stated

further that it placed Complainant in LWOP status until October 1, 2009

as Complainant indicated that doing so would allow him to reach early

retirement age of 52 and the necessary time-in-service. The Agency

stated that the Human Resources Department that reviewed Complainant's

retirement application indicated that Complainant was not fully-vested

in the retirement plan because he was flexible status and ineligible

to participate in the retirement plan from December 2003 to April 2006,

and did not elect to enroll in the retirement plan until December 2007.

The instant appeal from Complainant followed.

On appeal, Complainant stated that the Agency should have contacted him

to renegotiate the terms of the agreement when it learned that he was

ineligible for early retirement. In opposition to Complainant's appeal,

the Agency stated that, in good faith, it agreed to allow Complainant

to meet the general early retirement requirements but did not agree to

provide Complainant any benefits to which he was not entitled.

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).

In the instant case, we find that the Agency is in compliance with the

August 12 settlement agreement. With respect to Paragraph (3) of the

agreement, the Agency reinstated Complainant to LWOP status retroactive

from August 6, 2009 until the resignation date of October 1, 2009.

We find that the remainder of that provision - "solely to enable the

Complainant to meet the eligibility requirements for early retirement

pursuant to BUPERSINST [Bureau of Naval Personnel Instruction] 5300.10A

section 702(e)(2)(a)" - was not a guarantee that Complainant would be able

to retire on a particular day. Although both parties misunderstood the

eligibility requirement for 5300.10A section 702(e)(2)(a), we conclude

that the Agency complied with the express terms of the agreement when

it allowed Complainant LWOP to October 1, 2009. Further, the record

indicates that the Agency performed the provisions of (1), (2) and (4).

Based on a careful review of the record, we find that the Agency has

complied with the August 12 agreement with Complainant.

Accordingly, we AFFIRM the Agency final determination of no breach.

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), 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

June 24, 2010

__________________

Date

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0120101260

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

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0120101260