Robert L. Womack, Complainant,v.Gregory R. Dahlberg, Acting Secretary, Department of the Army, Agency.

Equal Employment Opportunity CommissionFeb 26, 2001
01993660 (E.E.O.C. Feb. 26, 2001)

01993660

02-26-2001

Robert L. Womack, Complainant, v. Gregory R. Dahlberg, Acting Secretary, Department of the Army, Agency.


Robert L. Womack v. Department of the Army

01993660

February 26, 2001

.

Robert L. Womack,

Complainant,

v.

Gregory R. Dahlberg,

Acting Secretary,

Department of the Army,

Agency.

Appeal No. 01993660

DECISION

Complainant filed a timely appeal with this Commission from an agency

decision dated February 18, 1999, finding that it was in compliance with

the terms of the October 9, 1998 settlement agreement into which the

parties entered. The settlement agreement, which settled the complaints

of complainant and another employee, provided, in pertinent part, that:

(4)(c). SAS [Army, Savannah District] agrees to convert the Complainants

to permanent appointments as Motor Vehicle Operators, WG-5703-06,

effective not later than two pay periods following execution of this

agreement.<1>

(4)(d). SAS agrees to approve travel vouchers in order that Complainants

are paid TDY in the approximate amounts set forth in the Attachment to

this Agreement. SAS has attempted to calculate these amounts according

to the Joint Travel Regulations. However, the U.S. Army Corps of

Engineers Finance Center (�Finance Center�), and not SAS, ultimately

determines the appropriate amount of TDY to be paid to Complainants.

The Complainants agree that these approximate amounts are all that are

due and owing to them for unpaid TDY.

(4)(e). SAS agrees to pay the lump sum of $2,000.00 to each of the

Complainants within 60 days of the date of this agreement for personal

self-development.

By letter dated December 31, 1998, complainant alleged that the agency

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

underlying complaint be reinstated from the point where processing ceased.

Complainant alleged that the agency failed to provide him with a permanent

WG-6 Motor Vehicle position and pay him for TDY trips and $2,000.00 for

self-development. In its February 18, 1999 decision, the agency concluded

that the agency was not in breach of the October 9, 1998 agreement.

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 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).

On appeal, complainant claims that the agency only breached clause 4(c)

of the agreement. In the instant case, we find that the agency has

not breached the October 1998 settlement agreement. With respect to

clause 4(c) of the above agreement, we find, based on the record, that

complainant was placed in a permanent position as a WG-6 Motor Vehicle

Operator, effective October 25, 1998. Concerning clauses 4(d) and

(e), the Commission finds that the complainant is no longer challenging

compliance with these terms of the settlement agreement.

The Commission hereby AFFIRMS the agency's decision finding no breach

of the October 9, 1998 agreement.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0900)

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 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 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 (S0900)

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:

______________________________

Carlton M. Hadden, Director

Office of Federal Operations

February 26, 2001

__________________

Date

CERTIFICATE OF MAILING

For timeliness purposes, the Commission will presume that this decision

was received within five (5) calendar days after it was mailed. I certify

that this decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

__________________

Date

______________________________

1With respect to this clause, there is an addendum to the agreement,

which in essence provides, that the Complainants will temporarily

perform the duties of a WG-06 employee until the conversion is complete.

Furthermore, the Complainants agree not to file subsequent complaints

regarding this temporary assignment.