Pemiton E. Gregory, Complainant,v.Pete Geren, Secretary, Department of the Army, Agency.

Equal Employment Opportunity CommissionOct 28, 2009
0120093085 (E.E.O.C. Oct. 28, 2009)

0120093085

10-28-2009

Pemiton E. Gregory, Complainant, v. Pete Geren, Secretary, Department of the Army, Agency.


Pemiton E. Gregory,

Complainant,

v.

Pete Geren,

Secretary,

Department of the Army,

Agency.

Appeal No. 0120093085

Agency No. ARWRAMC07NOV04381

DECISION

Complainant filed an appeal with this Commission from a final decision

(FAD) by the agency dated June 1, 2009, finding that it was in compliance

with the terms of the July 20, 2000 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

agreed to the following:

(1) That it will cancel and rescind complainant's five-day suspension,

which was effective September 13 through 17, 1999. The decision

memorandum and the proposed suspension memorandum will be canceled and

rescinded, and complainant's records will be amended to reflect that

he was in a paid status from September 13 through 17, 1999.

(2) That it will issue complainant an official reprimand based on

the charges and specifications contained in complainant's proposed

suspension memorandum, but it will replace "false statement" with

"misleading statement" as a charge. This official reprimand will be

placed in complainant's Official Personnel file for one year effective

September 13, 1999, the date that complainant was initially suspended,

where upon it will be removed.

By letter to the agency dated May 7, 2009, complainant alleged that the

agency was in breach of the settlement agreement, and requested that

the agency specifically implement its terms. Specifically, complainant

received a Notice of Proposed Removal on February 18, 2009, which

referenced the suspension. As such, complainant alleged that the agency

failed to remove the suspension from his Official Personnel File (OPF).

In its June 1, 2009 FAD, the agency noted that complainant was untimely in

filing his claim of breach. The agency noted that complainant failed to

raise this issue over the nine years since the signing of the settlement

agreement. Therefore, complainant failed to act diligently and should

be time barred. In the event that complainant's claim was timely, the

agency determined that it did not violate the settlement agreement.

The agency found that the SA did not require the agency to purge all

records of the suspension. The SA only requires the agency to cancel

and rescind the five-day suspension. Further, a copy of the OPF showed

that the suspension was rescinded.

Complainant appealed. Complainant provided a copy of his OPF.

In addition, complainant included sworn statements provided by agency

officials in connection with his complaint before the Merit Systems

Protection Board. In those statements, the deciding official indicates

that he was not aware of the suspension from the OPF, however, HR

officials recommended including the suspension as support of the Removal

action in 2009.

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 not in breach of the

settlement agreement. The Commission acknowledges that a review of the

record reflects that suspension was removed from the OPF. Further,

the deciding official indicated that the suspension was not found in

complainant's OPF. He noted that he had decided to issue the Notice of

Removal without knowledge of or reliance upon the suspension at issue.

He indicated that it was the HR officials who raised the suspension,

not complainant's official record. Moreover, noting that the rescission

of the suspension occurred in 1999, we find that complainant's breach

claim would be barred by the doctrine of laches due to his failure to

act diligently.

Accordingly, the Commission AFFIRMS the agency's final decision finding

no breach of the SA.

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

October 28, 2009

__________________

Date

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0120093085

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

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0120093085