0120092222
09-01-2009
Terrence L. Bettendorf, Complainant, v. Pete Geren, Secretary, Department of the Army, Agency.
Terrence L. Bettendorf,
Complainant,
v.
Pete Geren,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120092222
Agency No. AREUSCHW08MAY01813
DECISION
Complainant filed a timely appeal with this Commission from a final agency
decision dated March 10, 2009, finding that it was in compliance with
the terms of the October 24, 2008 settlement agreement into which the
parties entered. See 29 C.F.R. �� 1614.402; 1614.405 & 1614.504(b).
The settlement agreement provided, in pertinent part, that:
The Army agrees (a) to destroy the Performance Improvement Plan [(PIP)] in
the Complainant's file immediately after its ending date of 21 November
2008, and (b) to hold a sensing session at U.S. Army MEDDAC-Bavaria
no later than 31 December 2008 so that civilian employees ma[y] speak
confidentially to a responsible management official from outside that
organization regarding the practices of management with respect to
civilian employees.
By letter received by the agency on February 11, 2009, complainant
alleged that the agency was in breach of the settlement agreement, and
requested that the agency specifically implement its terms. Specifically,
complainant alleged that management referred to his PIP in his year-end
evaluation although the agreement indicated that all reference to the
PIP would be removed from his record.
In its March 10, 2009 final decision, the agency concluded that it was
not in breach of provision (a) of the settlement agreement. Specifically,
the agency stated that it removed and destroyed the PIP from complainant's
personnel file on or about November 21, the agreement did not address
other documents, and complainant failed to show that his appraisal was
completed after the date the PIP had to be removed (November 21, 2008).
Subsequently, the agency stated that complainant really sought to grieve
the performance evaluation. The instant appeal from complainant followed
the final agency decision.
On appeal, complainant stated that the PIP was the "item of negotiation"
at settlement and that "nothing in the PIP . . . justifies any negative
evaluation." Complainant stated that the circumstances show that he
was discriminated against.
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 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).
In the instant case, we agree with the agency and find that, based on
"the plain meaning rule," complainant failed to establish that the agency
breached the October 24 agreement. Specifically, we conclude that the
agency destroyed records of the PIP after its ending date of November 21,
2008, as required by the agreement. The annual appraisal complainant is
concerned about was for the rating period ending August 15, 2008, which
included a period covered by the PIP. Complainant has not provided any
evidence that the appraisal was written or received after November 21,
2008, when record of the PIP was to be destroyed. Moreover,
provision (a) requires destruction of the actual PIP only and does not
cover other documents that might "refer to" the PIP. If complainant
believes that he was discriminated against based on his performance
evaluation, we advise him that he may contact an EEO Counselor if he
wishes to pursue the matter through the EEO process. We AFFIRM the
final agency decision finding compliance.
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
September 1, 2009
__________________
Date
2
0120092222
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
4
0120092222