01985860_r
12-09-1999
Charles L. Butler, Complainant, v. Louis Caldera, Secretary, Department of the Army, Agency.
Charles L. Butler, )
Complainant, )
)
v. ) Appeal No. 01985860
) Agency No. AEGMFO9704H0050
Louis Caldera, )
Secretary, )
Department of the Army, )
Agency. )
____________________________________)
DECISION
On June 16, 1997, complainant filed a formal complaint alleging that
he was subjected to employment discrimination on the bases of race
(African-American) and color (black) in violation of Title VII of
the Civil Rights Act of 1964, as amended, 42 U.S.C. �2000e et seq.
According to a Memorandum for the Record dated June 26, 1997, an agency
EEO Officer spoke with complainant on the phone to clarify the allegations
in the complaint on June 25, 1997. The memorandum states that complainant
clarified the issues in his complaint as follows:
Complainant was hired as a WY-03 temporary laborer in 1994, while whites
were hired some time later at a WY-05 level;
White temporaries were allowed to continue working while complainant
was furloughed in November 1996;
Complainant was never given welding training; and
Complainant was issued a Notice of Proposed Removal signed by management
that contains inaccuracies and is an effort by management to harm
complainant's career with the corps.
On August 21, 1997, the agency issued a notice of processing accepting
claim (c) for investigation. The agency also issued a final decision
(FAD) the same day, dismissing claims (a), (b), and (d).
Complainant and the agency then signed a settlement agreement on October
7, 1997 which provided, in pertinent part:
[T]he [agency] agrees to provide the relief set forth below to resolve
the complaint referenced above [AEGMFO9704H0050]:
[Complainant] will receive 40 hours of welding training during FY98, to
be conducted by Tennessee Valley Authority (TVA). If TVA cannot provide
this training before March 31, 1998, equivalent welding training will be
procured from a vocational technical training school in [complainant's]
commuting area, with enrollment to be initiated at the beginning of the
next school term after March 31, 1998.
In exchange for the above listed actions, [complainant] agrees that the
following issue included in the above-captioned complaint, is settled:
his allegation that he was discriminated against based on his race
(African-American) and color (black) because he has not received
welding training. . . . [Complainant] also agrees that this agreement
settles the previously dismissed issues: his being hired as a temporary
WY-03 in 1994 while whites were hired as WY-05 maintenance workers
some time later (about March 1995); white temporary employees were
allowed to continue to work while he, a permanent seasonal employee,
was furloughed in November 1996; and on April 9, 1997, he was issued a
Notice of Proposed Removal, ..., which contained inaccuracies and was
considered an effort by [management] to harm [complainant's] career
with the Corps. These issues were dismissed by issuance of the Army's
final decision letter dated August 21, 1997.
. . . In addition, [complainant] agrees to waive his right to pursue
administrative or judicial action in any forum, concerning the matters
raised in this complaint, and that they will not be made the subject
of future litigation.
Complainant telephoned the agency on November 21, 1997, to inquire about
the dismissed allegations from his complaint. The agency responded
by letter, also dated November 21, 1997, noting that complainant never
received the August 21, 1997 FAD. The letter informed complainant that
if he wished to pursue the dismissed allegations, he should appeal to
this Commission within thirty days of receipt of the letter.
On appeal, complainant claims that the agency breached the settlement
agreement. Complainant admits that he is �satisfied with receiving
welding training,� except that complainant initially was told by phone
that he would receive training from TVA before his furlough on December
6, 1997, or �would be put back on payroll� to take training at a local
vocational training school. Complainant argues that the document he
received on October 7, 1997, included terms contrary to what he agreed
to over the phone. Complainant also contends that the agreement's
prohibition on his right to raise �other issues� as discriminatory was
�sinfully wrong,� and should be voided.
The agency provided no response on appeal.
ANALYSIS AND FINDINGS
EEOC Regulations<1> require a complainant to notify the agency EEO
Director in writing within thirty (30) days of an alleged breach of
settlement. See 64 Fed. Reg. 37,644, 37,660 (1999) (to be codified at
and hereinafter referred to as EEOC Regulation 29 C.F.R. �1614.504(a)).
If the complainant is not satisfied with the agency's response to his
allegations of breach, or the agency fails to respond within thirty-five
(35) days, then the complainant may file an appeal to this Commission.
Id.
In the present case, complainant did not notify the agency of his breach
allegation prior to filing his appeal. However, the agency became
aware of complainant's allegations of breach when it received a copy of
the appeal. The agency failed to respond, and more than thirty-five days
have passed since complainant filed his appeal. The Commission deems the
agency's silence to be an assertion that the settlement agreement was
not breached; thus, the Commission may address whether a breach occurred.
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 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 present case, the October 7, 1997 settlement agreement is plain
and unambiguous on its face. Accordingly, the Commission will not
review phone conversations, or any other information from settlement
negotiations, to determine the intent of the parties. If complainant
objected to the manner in which he would be provided training under the
October 7, 1997 agreement, he should have negotiated for the changes he
desired before signing the agreement.
The Commission presumes that the �other issues� complainant seeks to
appeal involve claims (a), (b), and (d), since these are the only other
issues covered by the settlement agreement. The settlement agreement does
not bar complainant from raising future claims of discrimination. The
agreement also does not violate any provision of law or equity by
requiring complainant to settle his complaint in exchange for valid
consideration (welder training).
CONCLUSION
Accordingly, the agency's decision 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:
December 9, 1999
____________________________
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 Equal Employment Assistant 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. 37644 (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.