0120091999
09-01-2009
Theodore E. Danielson, Complainant, v. Timothy F. Geithner, Secretary, Department of the Treasury, Agency.
Theodore E. Danielson,
Complainant,
v.
Timothy F. Geithner,
Secretary,
Department of the Treasury,
Agency.
Appeal No. 0120091999
Agency No. EEODFS-07-0835F
DECISION
Complainant filed a timely appeal with this Commission from a final
agency decision dated November 13, 2008, finding that it was in compliance
with the terms of the August 7, 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:
(1) The Agency agrees . . .
(f) to provide the Complainant with assistance and performance
feedback by providing him with an on-the-job instructor (OJI) from
August 25, 2008, through January 31, 2009, as well as provide him
with the most recently produced training materials for new hires;
(g) to provide the Complainant with all applicable notice
and guidance with respect to changes to the [agency] code and
[agency] manual from May 29, 2007 through August 24, 2008;
(h) to issue the Complainant a performance progress review
pursuant to the procedures and framework described in IRM
6.430.2.3.2 on or prior to February 15, 2009, based on his
performance from August 25, 2008, through January 31, 2009[.]
By letter to the agency dated October 2, 2008, 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 the agency failed to provide him with all agreed training
materials and intended to give him his performance progress review late
because his supervisor stated that she preferred to give it on April 30,
2009 rather than February 2009. Further, complainant acknowledged that
there is no such provision in the November 13 agreement, but stated
that the agency denied him adequate time to study training materials
and prohibited him from studying at home on his personal time. Lastly,
complainant stated that the agency retaliated against him by instructing
him not to refer to agency code or use Excel, and to focus on cases
rather than training although he was in training mode.
In its November 13 final decision, the agency found no breach. The agency
stated that, between August 26, 2008 and October 9, 2008, management
took several steps to ensure that complainant had all applicable agency
notices and guidance; complainant's allegation regarding the preferred
date for his performance progress review was premature; and complainant
could initiate EEO contact to pursue a new claim regarding the matters
not addressed in the settlement agreement and the alleged retaliatory
incidents. The agency provided a list of dates when managers provided
access to training materials to complainant. The instant appeal from
complainant followed.
On appeal, complainant stated that his on-the-job instructor (OJI),
provided for in paragraph (1)(f), did not provide assistance or
performance feedback because management instructed her not to do so,
and that all breach allegations arise out of this action. Further,
complainant stated that he did receive a performance review but that it
was inaccurate.
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 find that complainant failed to meet his burden of
proving breach. See Vega v. U.S. Postal Service, EEOC Appeal No. 01986613
(June 30, 2000). Based on the evidence in the record, the Commission
is not persuaded that the agency breached the settlement agreement as
complainant alleged here. Complainant did not show that the agency failed
to provide him appropriate training materials and he acknowledged that
he received his performance review. Also, complainant failed to show
that what the OJI did not provide undermined the agreement's purpose
or effect. Further, to the extent that complainant alleged reprisal and
adverse actions outside of the settlement agreement, we advise complainant
that he has the right to initiate contact with an EEO Counselor if he
believes such treatment is based on discriminatory motives. We AFFIRM
the final agency decision finding no breach.
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
0120091999
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
4
0120091999