William L. Reynolds, Complainant,v.Bill Richardson, Secretary, Department of Energy, Agency.

Equal Employment Opportunity CommissionMar 17, 2000
01982121 (E.E.O.C. Mar. 17, 2000)

01982121

03-17-2000

William L. Reynolds, Complainant, v. Bill Richardson, Secretary, Department of Energy, Agency.


William L. Reynolds v. Department of Energy

01982121

March 17, 2000

William L. Reynolds, )

Complainant, )

)

v. ) Appeal No. 01982121

) Agency Nos. 95(84)OR

Bill Richardson, ) 95(138)AL

Secretary, )

Department of Energy, )

Agency. )

)

DECISION

Complainant timely appealed the agency's decision that denied his

claim that the settlement agreement entered into between the parties

had been breached. (see 64 Fed. Reg. 37,644, 37,659 (1999) (to be

codified and hereinafter cited as 29 C.F.R. �1614.402(a)), and (see

64 Fed. Reg. 37,644, 37,660 (1999) (to be codified and hereinafter

cited as 29 C.F.R. �1614.504(b)), and is accepted in accordance with 64

Fed. Reg. 37,644, 37,659 (1999) (to be codified at 29 C.F.R. �1614.405)

.<1>

ISSUE PRESENTED

The issue on appeal is whether the agency breached the settlement

agreement.

BACKGROUND

Complainant filed a formal EEO complaint dated March 13, 1995 (Agency

No. 95(84)OR), wherein he alleged that he was discriminated against

on the bases of his race (black), age (49), physical disability (50%

disabled veteran), and in reprisal for his previous EEO activity when

he was not selected under Vacancy Announcement 94-75 for the position

of Program Specialist, GS-301-13. Complainant filed another formal EEO

complaint on July 8, 1995 (Agency No. 95(138)AL), wherein he alleged

discrimination on the bases of his race (black), color (black), age

(49), and physical disability (disabled veteran) when he was denied the

position of Public Participation Coordinator after qualifying, and he

was denied the opportunity for further competition when these jobs were

readvertised under another job classification series.

The complaints were resolved by a settlement agreement entered into on

October 30, 1995. The agreement stated in relevant part that the agency

agrees to:

1. Provide the Complainant with $39,369.67 in backpay, $61,644.64 in

front pay and other benefits including appropriate withholdings, and

2. Contact the Environmental Protection Agency's (EPA) Personnel and

Civil Rights offices concerning the reference information provided to

selecting officials at Oak Ridge Operations by [ ], a former supervisor

of the Complainant at the EPA. The objectives of these contacts are to

make the EPA aware of the type of information [the former supervisor]

is providing, to suggest that the agency discuss this matter with [the

former supervisor], and suggest that the EPA provide general letters of

reference for the Complainant.

Complainant agreed in part not to apply for a position with the agency,

including its field elements, for one year from the effective date of

the agreement. The agreement also provided in part that:

If the terms specified by this agreement are not carried out or are

rescinded for any reason not attributable to the acts or conduct of the

Complainant, this complaint is subject to reinstatement upon receipt of

the Complainant's written request.... Any request for reinstatement of

this complaint must include a full explanation of why the Complainant

believes that the terms of this agreement have not been met.

By letter dated November 21, 1997, complainant notified the agency that

it had breached the settlement agreement. According to complainant,

his reference materials at the agency have prevented him from obtaining

appropriate positions for which he is qualified. Complainant claimed that

he has been blacklisted and is unable to find work in his field within

the government. According to complainant, the agency was obligated

to contact the EPA's Personnel and Civil Rights Offices concerning the

reference information provided by complainant's former supervisor at the

EPA so as to ensure that the former supervisor's biased information not

be allowed to corrupt his excellent record. Complainant requested that

his complaints be reinstated.

By letter dated December 1, 1997, the agency responded that the agreement

did not obligate the agency to ensure that any information the former

supervisor or the EPA might furnish about complainant would not harm

his record. The agency emphasizes that its obligations under the

settlement were to inform the EPA about the type of information his

former supervisor was providing, and to suggest that the EPA discuss

this matter with the former supervisor and provide general letters

of reference for complainant. The agency further stated that it has

not blacklisted complainant, and is unaware of any attempts by any

other government agency to blacklist him. The agency determined that

complainant failed to articulate how it breached the agreement.

By letter dated December 5, 1997, complainant claimed that the letter

and spirit of the settlement agreement has not been carried out.

Complainant again requested that his complaints be reinstated.

In its final decision dated January 7, 1998, the agency determined that

the settlement agreement has not been breached. The agency determined

that complainant provided no evidence to support his contention that the

letter and spirit of the agreement has not been fulfilled. The agency

stated that it has done all that it agreed to do. According to the

agency, in a letter dated March 4, 1996, it contacted the EPA and made it

aware of the type of information that complainant's former supervisor was

providing. The agency stated that it asked the EPA to provide a general

letter of reference concerning complainant's past employment and that it

not allow the former supervisor to communicate with potential employers.

The agency noted that by letter dated March 27, 1996, the EPA contacted

complainant and provided him with a general letter of reference. Finally,

the agency determined that complainant failed to present evidence in

support of his claim that agency reference materials serve to blacklist

him from his field of employment throughout the government.

On appeal, complainant contends that under the agreement, he did not

need to proffer evidence in support of a request for reinstatement of

his complaints, but rather the agreement requires a full explanation.

Complainant maintains that the agency's disagreement with his explanation

does not supercede its obligation to reinstate his complaints upon his

written request. Complainant claims that the agency wrongfully furnished

biased reference materials to prospective employers in violation of

the settlement.

ANALYSIS AND FINDINGS

Volume 64 Fed. Reg. 37,644, 37,660 (1999) (to be codified and hereinafter

cited as 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.

If the complainant believes that the agency has failed to comply with

the terms of a settlement agreement or final action, the complainant

shall notify the EEO Director, in writing, of the alleged noncompliance

within 30 days of when the complainant knew or should have known of the

alleged noncompliance. The complainant may request that the terms of

the agreement be specifically implemented, or, alternatively, that the

complaint be reinstated for further processing from the point processing

ceased.

EEOC Regulation 29 C.F.R. �1614.504(b) provides that the agency

shall resolve the matter and respond to the complainant, in writing.

If the agency has not responded to the complainant, in writing,

or if the complainant is not satisfied with the agency's attempt to

resolve the matter, the complainant may appeal to the Commission for a

determination as to whether the agency has complied with the terms of

the settlement agreement or action. The complainant may file such an

appeal 35 days after he or she has served the agency with the allegations

of noncompliance, but must file an appeal within 30 days of his or her

receipt of an agency's determination.

The Commission has consistently held that settlement agreements are

contracts between the complainant and the agency, and 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, 381 (5th Cir. 1984).

In the instant matter, complainant claimed that the agency breached the

settlement agreement by wrongfully furnishing biased reference material

to prospective employers and that he has been blacklisted in his job

field throughout the government. Complainant claims that the agency

has not fulfilled the spirit and letter of the agreement. Initially, we

note that pursuant to the settlement agreement, the agency was obligated

to make the EPA aware of the type of information complainant's former

supervisor was providing, to suggest that the EPA discuss this matter

with the former supervisor, and to suggest that the EPA provide general

letters of reference for the complainant. The agency stated in its final

decision that in March 1996, it contacted the EPA and made it aware of the

type of information that complainant's former supervisor was providing.

The agency stated that it asked the EPA to provide a general letter

of reference concerning complainant's past employment and that it not

allow the former supervisor to communicate with potential employers.

Complainant has not argued or submitted evidence to establish that the

agency failed to perform any of these actions. We find that complainant

failed to establish that the agency did not fulfill its responsibilities

under the settlement agreement. Complainant's arguments concerning the

agency furnishing biased reference material to prospective employers and

that he has been blacklisted are not supported by any documentation or

other evidence. Therefore, we find that complainant has not established

that the agency acted in bad faith or otherwise violated the spirit and

letter of the agreement. Accordingly, we find that the agency's decision

finding that the settlement agreement had not been breached was proper

and is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M1199)

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). 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).

COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S1199)

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:

March 17, 2000

____________________________

Date Carlton M. Hadden, Acting Director

Office of Federal Operations

CERTIFICATE OF MAILING

For timeliness purposes, the Commission will presume that this decision

was received within five (5) calendar days of mailing. I certify that

the decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

_______________ __________________________

Date

1 On 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.