Steven D. Aran, Complainant,v.Louis Caldera, Secretary, Department of the Army, Agency.

Equal Employment Opportunity CommissionMay 11, 2000
01a01304 (E.E.O.C. May. 11, 2000)

01a01304

05-11-2000

Steven D. Aran, Complainant, v. Louis Caldera, Secretary, Department of the Army, Agency.


Steven D. Aran, )

Complainant, )

)

v. ) Appeal No. 01A01304

) Agency Nos. AQFDFO-9705H0370

Louis Caldera, ) AQFDFO-9708H0590

Secretary, ) AQFDFO-980210060

Department of the Army, ) AQFDFO-980510150

Agency. )

____________________________________)

DECISION

Complainant filed a timely appeal with this Commission from a final

decision (FAD) by the agency dated November 5, 1999, finding that it

was in compliance with the terms of the September 14, 1998 settlement

agreement into which the parties entered.<1> See 64 Fed. Reg. 37,644,

37,659, 37,660 (1999)(to be codified and hereinafter referred to

as EEOC Regulation 29 C.F.R. � 1614.402); 29 C.F.R. � 1614.504(b);

and 64 Fed. Reg. 37,644, 37,659 (1999)(to be codified at 29 C.F.R. �

1614.405).

The settlement agreement provided, in pertinent part, that:

The agency agrees to place complainant...to the permanent position of

School Age Services Specialist, GS-1701-7 (Step 7). The position is

located in the Youth Services School Age Service Program Family Suport

Division Directorate of Community Activities 34th Support Group Yongsan

Army Garrison, Seoul, Korea. The agency will place the complainant

in this position at a mutually agreed date, no later than 30 (thirty)

days of the date of this agreement.

By letter to the agency dated October 6, 1999, complainant alleged that

the agency breached the settlement agreement, and requested that the

agency reinstate his four EEO complaints. Specifically, complainant

claims that he entered into the settlement agreement under false

pretenses, and that there were outside verbal understandings which the

agency is not now honoring. In particular, complainant contends that

the agency failed to tell him that there was a GS-9 position available,

which he would have wanted instead of the GS-7 position, and that it was

understood that he was to get a living quarters allowance, and certain

other benefits, which the agency is now refusing to give him.

In its November 5, 1999 FAD the agency concluded complainant was placed

into the GS-7 position in the settlement agreement on September 27,

1998, and that there was nothing in the agreement about a living quarters

allowance or any other type of benefits.

On appeal, complainant contends that his statements should be considered

more credible than that of the agency, and additionally argues that he

signed the settlement agreement under duress.

64 Fed. Reg. 37,644, 37,656 (1999)(to be codified and hereinafter

referred to as 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).

In the instant case, the record confirms that the agency placed

complainant into the position identified in the settlement agreement,

in a timely manner, and there is no evidence to support complainant's

statements that he signed the settlement agreement under duress or false

pretenses. Moreover, as indicated above, it is well settled that the

intent of the parties is embodied in the terms of the agreement, and in

this case the terms are clear and did not include the additional benefits

complainant is now requesting. We are unpersuaded by complainant's

assertion that the settlement agreement required the agency to place

him into a GS-9 position, or to provide him with a living quarters

allowance and other benefits. To the extent that complainant interpreted

the provisions of the settlement agreement as requiring the agency to

place him into a GS-9 position and to provide the identified benefits,

such interpretation should have been reduced to writing as part of the

settlement agreement. Jenkins-Nye v. General Services Administration,

EEOC Appeal No. 01951903 (March 4, 1987).

Accordingly, we AFFIRM the agency's finding of no settlement breach.

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 11, 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.