Richard L. Achey, Complainant,v.William S. Cohen, Secretary, Department of Defense, (Defense Logistics Agency), Agency.

Equal Employment Opportunity CommissionMay 31, 2000
01a01975 (E.E.O.C. May. 31, 2000)

01a01975

05-31-2000

Richard L. Achey, Complainant, v. William S. Cohen, Secretary, Department of Defense, (Defense Logistics Agency), Agency.


Richard L. Achey v. Department of Defense

01A01975

May 31, 2000

Richard L. Achey, )

Complainant, )

)

v. ) Appeal No. 01A01975

) Agency No. JQ-98-005

William S. Cohen, )

Secretary, )

Department of Defense, )

(Defense Logistics Agency), )

Agency. )

__________________________________)

DECISION

Complainant filed the instant appeal alleging that the agency breached

the settlement agreement (of an informal EEO complaint) entered into by

the parties on September 29, 1998.<1>

The settlement agreement provided:

[Complainant's] space in Building 83 will be available for him to move

into by Monday October 5, 1998. Those items cited on the template

listing of items needed in his office will be provided, except for

the fax machine. [Person A] will look into the possibility of getting

[complainant] a fax machine.

Provided the conditions of paragraph 3 are met, within a period not to

exceed 6 months, [Person A] will discuss with Management the possibility

of a second person to backfill [complainant's] position as Chief Steward

of AFGE Local 2004. In the interim, [complainant] will be provided voice

mail or an answering machine to take messages when he is not available,

he will take advantage of the Depot Mail System, as much as possible,

for official labor management business, and [complainant] will explore

with his counterparts creative ways to handle his dual duties.

In an effort to rebuild the working relationship between Management and

the Union, both parties agree that when an issue arises in the future

that could escalate beyond their control, they will do the following:

(i) [Person A] agrees to maintain her neutrality and objectivity, (ii)

[Complainant] will disregard old baggage and start anew, (iii) [Person A]

will brainstorm issues with [complainant], (iv) [Complainant] will provide

[Person A] with his opinion on DDC issues, (v) [Person A] will call

[complainant], give him her position, tell him what she can do, and then

tell him what the sticky points are or might be, (vi) [Complainant] will

provide the Union's position and work creatively to resolve the issues

and as a last resort proceed to a 3rd party resolution. Additionally,

[Person A] requested and [complainant] agreed to (1) focus issues to the

proper channels; (2) be flexible and understand the "big picture"; and

(3) recognize his responsibility and authority of his Vice President

role. [Complainant] requested and [Person A] agreed to (1) trust him;

(2) not make issues personal; and (3) communicate.

Complainant alleged by memorandum dated August 30, 1999, that the agency

breached the agreement because Person A: (1) failed to maintain her

neutrality and objectivity; (2) refused to discuss and negotiate areas

that are vital in Labor Relations issues; (3) did not trust complainant;

and (4) made all labor relation conflicts personal. There is no agency

decision in the record. However, on appeal the agency asserts that it

did not breach the settlement agreement; that the "vast majority" of the

breach claims were not timely raised; and that complainant breached the

settlement agreement. The Commission shall consider the agency brief on

appeal as a decision finding no breach. On appeal, complainant argues

that Person A violated the agreement by making issues personal and by

failing to maintain her neutrality and objectivity.

The regulation set forth at 64 Fed. Reg 37,644, 37,660 (1999) (to be

codified as and hereinafter cited as 29 C.F.R. � 1614.504(a)) provides

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 appellant 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. United

States Postal Service, EEOC Request No. 05931097 (Apr. 29, 1994) (citing

Hyon v. United States Postal Service, 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)).

Complainant has not claimed that provisions 1 or 2 of the settlement

agreement were breached. To the extent that complainant is making a

claim of breach regarding provisions 1 and 2, we find that complainant

has failed to show that the agency breached provisions 1 and 2 of the

agreement. The Commission finds that the portions of provision 3 of the

agreement at issue are too vague to permit enforcement or find breach.

It is impossible to determine if Person A: maintained her "neutrality

and objectivity"; "trust[ed]" complainant; did not make issues personal;

or communicated. These terms such as "trust" are simply too generalized

to permit a determination as to whether a party complied with such a term.

Therefore, we find that complainant has failed to show that the agency

breached the settlement agreement.<2>

The agency's determination finding that the agency did not breach the

settlement agreement is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0300)

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 64

Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred

to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter

referred to as 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).

COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)

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:

May 31, 2000

DATE Carlton M. Hadden, Acting Director

Office of Federal Operations

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 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the

present appeal. The regulations, as amended, may also be found at the

Commission's website at www.eeoc.gov.

2Because of our disposition we do not address whether complainant's

breach claims were timely raised or whether complainant breached the

settlement agreement.