Peter L. Regan, Jr., Complainant,v.Michael W. Wynne, Secretary, Department of the Air Force, Agency.

Equal Employment Opportunity CommissionAug 31, 2009
0120092589 (E.E.O.C. Aug. 31, 2009)

0120092589

08-31-2009

Peter L. Regan, Jr., Complainant, v. Michael W. Wynne, Secretary, Department of the Air Force, Agency.


Peter L. Regan, Jr.,

Complainant,

v.

Michael W. Wynne,

Secretary,

Department of the Air Force,

Agency.

Appeal No. 0120092589

Agency No. 9X1M08033

DECISION

Complainant filed an appeal with this Commission from an agency decision,

dated May 27, 2009, finding that it was in compliance with the terms

of the January 14, 2009 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:

(c) Should any prospective employers contact Complainant's unit

regarding Complainant, such prospective employers are to be referred to

Lt. Col [S].

. . .

(e) Support Complainant in his efforts to have his contracting

warrant reinstated.

By letter to the agency dated April 22, 2009, complainant alleged breach

of provisions (c) and (e). Regarding (c), complainant stated that a

prospective employer for a Procurement Analyst position was not referred

to the Lt. Colonel, but instead spoke with complainant's supervisor,

Deputy PK. As to receiving "support" for warrant reinstatement, provision

(e), complainant notes that while the Lt. Colonel did forward his name

to ASC/PK for consideration, no other action has been taken.

In its decision, the agency found no breach. Regarding provision (c),

the agency found that complainant himself submitted his supervisor's name

and contact information to the prospective employer. Regarding provision

(e), and referencing a May 12, 2009 memorandum, the agency found that

complainant has been "supported" in his efforts to obtain his contacting

warrant. In the memorandum, the Lt. Colonel describes communications

with the POC for the warrant program, as well as emails inquiring about

"fast tracking" and complainant's attendance at study groups.

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, which 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 Commission finds that complainant's allegation that provision (c) was

breached is not supported by the record. Rather, the record contains an

email exchange between the prospective employer and complainant revealing

that complainant himself provided the name of his supervisor when the

prospective employer requested the names and contact numbers of his last

three supervisors. Therefore, we agree with the agency that provision

(c) was not violated.

Next, we turn to provision (e), wherein the agency was obligated to

"support" complainant in his efforts to reinstate his contracting warrant.

Generally, the adequacy or fairness of the consideration in a settlement

agreement is not at issue, as long as some legal detriment is incurred

as part of the bargain. However, when one of the contracting parties

incurs no legal detriment, the settlement agreement will be set aside

for lack of consideration. See MacNair v. U.S. Postal Service, EEOC

Appeal No. 01964653 (July 1, 1997); Juhola v. Department of the Army,

EEOC Appeal No. 01934032 (June 30, 1994) (citing Terracina v. Department

of Health and Human Services, EEOC Request No. 05910888 (March 11, 1992).

In the instant case, we find that the term "support" is too vague to be

enforced. The Commission would be unable to determine whether or not the

agency had complied with such a requirement. The settlement language does

not provide complainant with reinstatement of his contracting warrant.

On appeal, complainant argues that the Lt. Colonel has the authority

to warrant complainant as a member of 88CONS, to which he is assigned.

Complainant argues that because he is not assigned to ASC/PK, where

complainant's name was forwarded, the agency would have nothing to gain

from having him go through the ASC/PK warrant process. If complainant

sought to have the Lt. Colonel authorize his warrant, he should have had

his intentions reduced to writing. Consequently, we find that provision

(e) is unenforceable and void. Since the remainder of the settlement

agreement contains adequate consideration, the Commission finds that

the agreement is hereby reformed without provision (e). 1

CONCLUSION

Accordingly, the agency's decision was proper and is hereby 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

August 31, 2009

__________________

Date

1 The agreement also provided complainant with forty hours of annual

leave and $2,000.00 in attorneys' fees.

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0120092589

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

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0120092589