0120081638
05-13-2008
Alan G. Woolsey, Complainant, v. Pete Geren, Secretary, Department of the Army, Agency.
Alan G. Woolsey,
Complainant,
v.
Pete Geren,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120081638
Agency No. ARHQOSAM06SEP03939
DECISION
Complainant filed an appeal from a final agency decision concerning
its compliance with an agreement between the parties settling an equal
employment opportunity (EEO) complaint filed by complainant.
The record reflects the following chronology of events. On July 20,
2007, complainant and the agency entered into a settlement agreement.
The settlement agreement provided, in pertinent part, that:
3. The agency agrees that:
a. The agency will cancel the personnel action effecting the
complainant's resignation from his position effective [November
25, 2006].
b. The agency will execute a personnel action placing the complainant
on Leave Without Pay status effective [November 25, 2006] to the date
his reassignment to his new position becomes effective.
c. The agency will reassign the complainant as a reemployed
annuitant to a Non-supervisory Human Resources Specialist,
YA-201-2, with emphasis in LMER, at the Kaiserslautern Civilian
Personnel Advisory Center, Kaiserslautern, Germany with a 3-year
term appointment. The complainant will have a reporting date
of not later then sixty days from date of the last signature is
affixed to this agreement. The agency will pay permanent change
of station (PCS) costs.
d. The complainant's initial annual salary at his new position will
be $79,652.00.
By letter to the agency dated October 3, 2007, complainant alleged that
the agency was in breach of the settlement agreement, and requested
that the agency reinstate his underlying complaint from the point
processing ceased.
In its final decision, dated December 17, 2007, the agency found no
breach. Nevertheless, the agency provided complainant with the option
of reinstating his underlying complaint and returning the parties to the
status quo ante due because it was found that provision 3(c) contained an
ambiguous phrase. Specifically, the agency decision-maker stated that,
"I find that the activity has complied with terms 3(a) and 3(b) of the
[settlement agreement]. Additionally, I find that the agency has complied
with Term 3(c), however, that term contains an ambiguous phrase ("emphasis
on LMER"), about which the parties do not agree. Accordingly, you have 15
(fifteen) days from the date of this decision in which to decide if you
wish to rescind the agreement in its entirety, and reinstate your formal
complaint of discrimination. If you choose to reinstate your complaint,
the entire [settlement agreement] will be voided, and the parties will
return to status quo ante (i.e., the conditions they were in at the time
before the agreement was reached)." The agency's final determination
also offered appeal rights to the Commission.
Complainant did not file an appeal from the agency's December 17, 2007
final determination; rather, complainant submitted a letter to the agency
dated December 28, 2007, requesting that the settlement agreement be
rescinded, his complaint be reinstated, and the parties be returned to
the status quo ante. Specifically, complainant stated, in pertinent
part, that "[i]t is my understanding that you have decided to permit
me to rescind the agreement in its entirety, and reinstate my formal
complaint of discrimination. And, if I choose to do so, the parties
will return to status quo ante, i.e., the conditions we were in at the
time before the agreement was reached. Please consider this my formal
request to rescind the agreement and return to the status quo ante."
In response, the agency issued a letter dated January 22, 2008 to
complainant. Therein, the agency acknowledged receipt of complainant's
December 28, 2007 letter. In addition, the agency, in its January 22,
2008 letter, issued the following Order:
Within 30 (thirty) calendar days of the date that this Order is
received, Camp Humphreys, Area IV Support Activity, is ordered to
notify complainant of his return to the status quo prior to the signing
of the settlement agreement and that his complaint be reinstated.
Complainant shall be notified that in order to return to the status quo
ante, he must return any benefits received pursuant to the agreement.
The agency shall determine any return of consideration of benefits due
from the complainant, within 30 (thirty) calendar days of the date this
decision is received and shall include such information in the notice
to complainant.
After complainant returns all benefits given him as a result of the
settlement agreement, ...the agency shall resume processing complainant's
complaint from the point processing ceased..."
This letter also provided complainant with appeal rights to the
Commission.
On appeal, complainant states that he was fraudulently induced by the
agency into believing that his only option to having his complaint
reinstated was to request status quo ante. Complainant further asserts
that he was told that his complaint would not be processed until he
reimbursed the agency. By letter to the Commission dated March 12,
2008, complainant's attorney asserted that the agency was in breach of
the settlement agreement and that the terms of the agreement should be
specifically implemented.
In response, the agency states that complainant did not timely file an
appeal from its December 17, 2007 final decision. The agency further
asserts that complainant's appeal with respect to its January 22, 2008
letter should be denied. The agency asserts that on December 28, 2007,
complainant elected to have the settlement agreement rescinded.1
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).
As a threshold matter, the Commission finds that complainant's appeal of
the agency's December 17, 2007 final determination finding no breach of
the settlement agreement is untimely. With respect to settlement breach
claims, Commission regulations provide that a complainant "must file an
appeal within 30 days of his or her receipt of an agency's determination."
29 C.F.R. � 1614.504(b). In the instant matter, the record reflects that
complainant received the agency's December 17, 2007 final determination on
December 27, 2007. The record contains a copy of the agency's December
17, 2007 final determination which contains the following handwritten
notation with complainant's initials "Rec'd 5 p.m. Thursday 12/27/07."
Complainant filed an appeal with the Commission regarding his settlement
agreement on February 14, 2008, beyond the applicable time period for
the agency's December 17, 2007 final determination.2 Nevertheless,
complainant timely filed an appeal from the agency's January 22, 2008
letter. Thus, we find that complainant's appeal solely pertaining to
the agency's January 22, 2008 letter is properly before us. Based on
these circumstances, we will not review whether the agency is in breach
of the settlement agreement, which was the subject of the December 17,
2007 final determination.
The agency properly issued an Order stating that for reinstatement of
complainant's underlying complaint, the parties would be returned to the
status quo ante. The Commission has stated that when reinstatement of
a complaint is ordered, it has required the restoration of status quo
ante, i.e., that a complainant does not retain any benefits received
under the settlement agreement. See Holmes v. Department of Agriculture,
EEOC Appeal No. 01962207 (May 6, 1999). On appeal, complainant asserts
that he was "fraudulently induced" by the agency to return to the status
quo ante. However, we disagree. The agency's December 17, 2007 final
determination informed complainant that he had the option of rescinding
the agreement and reinstating the complaint by returning to the status
quo ante. The agency expressly stated "the conditions they were in at the
time before the agreement was reached." Furthermore, the agency provided
complainant with appeal rights to the Commission in its December 17, 2007
final determination. However, as set forth above, complainant did not
appeal to the Commission from the December 17, 2007 final determination.
Rather, he submitted a letter to the agency dated December 28, 2007,
requesting that the agreement be rescinded, his formal complaint be
reinstated and that the parties be returned to the status quo ante.3
Accordingly, we find the agency's Order in its January 22, 2008 letter
requiring the parties be returned to the status quo ante prior to
complainant's complaint being reinstated is proper.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0408)
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 (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 (Z0408)
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
May 13, 2008
Date
1 The agency in its opposition brief asserts that complainant sent
an e-mail to the agency's representative on February 10, 2008, which
stated in part, "Therefore, consider this official notice that I wish
to withdraw any references to 'status quo ante' and I request that the
termination letter be canceled and the complaint be reinstated for
further processing." The Commission notes that the record does not
contain a copy of this e-mail.
2 The agency's December 17, 2007 final determination properly informed
complainant that he may file an appeal with the Commission thirty calendar
days from receipt of the decision.
3The record reflects that subsequent to the agency's letter dated January
22, 2008, the agency took steps to return the parties to the status
quo ante. In a memorandum to complainant dated February 4, 2008,
the agency stated that complainant elected to rescind the settlement
agreement on December 28, 2007; therefore, complainant's appointment
as a Human Resources Specialist would be terminated effective March
7, 2008. The record also contains a memorandum from the agency to
the Defense Debt and Claims Management Office dated March 12, 2008.
Therein, the agency requests suspension of collection and waiver
of indebtedness on behalf of complainant. The memorandum provides,
in pertinent part, that "[o]n September 30, 2007, [complainant] was
assigned to ...a term appointment not to exceed [September 29, 2010]
as a reemployed annuitant...[Complainant's] appointment was effected
as part of a settlement agreement...In February 2008, the agreement
was rescinded, the term appointment ...was cancelled and [complainant]
was returned to the status quo ante...As the result of the cancellation
of his appointment, he became in effect, a de facto employee, for the
period [September 30, 2007 to March 7, 2008]...I recommend suspension of
collection and waiver of any indebtedness stemming from the cancellation
of [complainant's] appointment to Germany. Specific expenses related
to his appointment include salary, living quarters allowance and post
allowance, permanent change of station costs...and costs for the emergency
visitation travel taken by [complainant] in January 2008. Further, as a
defacto employee he can legitimately claim the experience gained and he
is entitled to receive credit for purposes of accrual of annual leave,
unpaid compensation and lump-sum payment for unused leave. However,
[complainant] will be required to repay the remaining balance on the
salary advance he received in conjunction with his permanent change of
station to Germany. Unlike the salary waived for services rendered,
the salary advance was not earned and was payment for future, undelivered
services..."
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0120081638
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
6
0120081638