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.