0520120491
01-14-2015
Complainant, v. John M. McHugh, Secretary, Department of the Army, Agency.
Complainant,
v.
John M. McHugh,
Secretary,
Department of the Army,
Agency.
Request No. 0520120491
Appeal No. 0120100970
Agency No. ARBELVOIR09MAR01007
DECISION TO RECONSIDER
The Agency timely requested reconsideration of the decision in Complainant v. Department of the Army, EEOC Appeal No. 0120100970 (May 16, 2012). EEOC Regulations provide that the Commission may, in its discretion, grant a request to reconsider any previous Commission decision where the requesting party demonstrates 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.
See 29 C.F.R. � 1614.405(c).
On August 7, 2009, Complainant and the Agency entered into a settlement agreement. The settlement agreement provided, in pertinent part, that the Agency agrees:
3d. to permit Complainant to attend a Level III certification training course or up to 160 hours of acquisition training during Fiscal Year 2010, e.g. during the period 1 October 2009 to 30 September 2010.
By letter to the Agency dated August 21, 2009, Complainant alleged that the Agency failed to comply with provision 3d of the settlement agreement when it denied his request to attend a training course scheduled for August 25, 2009 to September 25, 2009. In its September 11, 2009 determination (FAD1), the Agency found that it complied with the terms of the settlement agreement.
Subsequently, Complainant appealed FAD1 to the Commission. Although the Commission notified the Agency that Complainant had appealed Agency No. ARBELVOIR09MAR01007, the Agency submitted the complaint file for another complaint involving Complainant - Agency No. ARBELVOIR09AUG03664. The complaint file for ARBELVOIR09AUG03664 included an October 20, 2009 Agency final decision procedurally dismissing that complaint (FAD2). There is no evidence that Complainant appealed FAD2 to the Commission. At some point in time, the Agency submitted the complaint file for ARBELVOIR09MAR01007.
The appellate decision addressed both FAD1 and FAD2. Regarding FAD1, the appellate decision found that there was insufficient evidence to determine whether the Agency complied with the terms of the settlement agreement. Specifically, the appellate decision noted that the complaint file provided by the Agency failed to include a copy of FAD1 or the settlement agreement. The appellate decision vacated FAD1 and remanded the matter to the Agency to supplement the record and to issue a new determination. Regarding FAD2, the appellate decision found that the Agency had not supported its decision to procedurally dismiss Complainant's complaint. The appellate decision vacated FAD2 and remanded the matter to the Agency to process the complaint in accordance with 29 C.F.R. � 1614.108.
In its request for reconsideration, the Agency argued that the appellate decision erred with respect to both FAD1 and FAD2. Regarding FAD1, the Agency asserted that the appellate decision erred in finding that the record was incomplete because, on or about June 9, 2014, it had submitted the complaint file for ARBELVOIR09MAR01007, which included a copy of FAD1 and the settlement agreement. Regarding FAD2, the Agency asserted that the appellate decision lacked jurisdiction to rule on FAD2 because there was no evidence that Complainant appealed FAD2 to the Commission. The Agency requested that we vacate the appellate decision, affirm FAD1, and find that FAD2 is not properly before the Commission.
In opposition to the Agency's request, Complainant submitted documents related to training courses, the complaint resolved by the settlement agreement, FAD1, and FAD2. Complainant, however, did not submit a brief or statement accompanying those documents.
Upon review, we find that the request fails to meet the criteria of 29 C.F.R. � 1614.405(c), and it is the decision of the Commission to DENY the request. Specifically, after reviewing the Commission's records, we find no clear evidence that the Commission received the complaint file for ARBELVOIR09MAR01007 before the appellate decision was issued.
However, in the interest of administrative efficiency, the Commission has decided to reconsider the appellate decision on its own motion. Regarding FAD1, we note that, at some point in time, the Agency submitted the complaint file for ARBELVOIR09MAR01007. The complaint file contains a copy of FAD1 and the settlement agreement. After reviewing the complaint file, we find that there is sufficient evidence to determine whether the Agency complied with the terms of the settlement agreement.
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. Dep't of Def., EEOC Request No. 05960032 (Dec. 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. Dep't of Veterans Affairs, EEOC Request No. 05900795 (Aug. 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. U.S. Postal Serv., EEOC Request No. 05910787 (Dec. 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).
Here, we find that the Agency complied with provision 3d when it denied Complainant's request to attend a training course scheduled for August 25, 2009 to September 25, 2009. Provision 3d contains no language requiring the Agency to permit Complainant to attend a training course prior to October 1, 2009. Complainant may have assumed otherwise, but that assumption was not memorialized in the settlement agreement.
Regarding FAD2, we find no evidence that Complainant ever appealed FAD2 to the Commission. Because Complainant did not appeal FAD2, the Commission had no jurisdiction to consider FAD2. See generally 29 C.F.R. � 1614.401(a). Therefore, the Agency is no longer obligated to comply with the Order in the previous decision directing it to process Agency No. ARBELVOIR09AUG03664 in accordance with 29 C.F.R. � 1614.108.
Accordingly, we VACATE the decision in EEOC Appeal No. 0120100970, AFFIRM the Agency's determination in FAD1, and decline to review FAD2.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (revised)
With regard to that portion of our decision pertaining to the Agency's determination that it complied with the terms of the settlement agreement (FAD1), 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), at 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 (S0610)
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 (Z0610)
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
__1/14/15________________
Date
2
0520120491
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0520120491