David L. Hippensteel, Complainant,v.Bill Richardson, Secretary, Department of Energy, Agency.

Equal Employment Opportunity CommissionDec 22, 1999
01991134 (E.E.O.C. Dec. 22, 1999)

01991134

12-22-1999

David L. Hippensteel, Complainant, v. Bill Richardson, Secretary, Department of Energy, Agency.


David L. Hippensteel, )

Complainant, )

)

v. ) Appeal No. 01991134

)

Bill Richardson, )

Secretary, )

Department of Energy, )

Agency. )

____________________________________)

DECISION

On November 19, 1998, complainant filed a timely appeal with this

Commission from a final decision (FAD) by the agency dated October 29,

1998, finding that it was in compliance with the terms of the January 6,

1997 settlement agreement into which the parties entered.<1>

The settlement agreement provided, in pertinent part, that:

(2) An Individual Development Plan (IDP) to address your future career

plans will be developed between you and your supervisor. For example,

the IDP could include participation in Risk Management and Project

Management training courses.

By letter to the agency dated October 6, 1998, complainant alleged

that the agency breached the settlement agreement, and requested that

the agency implement its terms. Specifically, complainant alleged

that his supervisor failed to cooperate in the development of an IDP.

Complainant asserted that on two occasions, he provided his supervisor

with an IDP which incorporated risk management and project management

training courses, and each training plan was rejected by his supervisor.

In its October 29, 1998 FAD, the agency concluded that it had not breached

settlement agreement between the parties. The agency indicated that

complainant and his supervisor had signed an IDP on October 1, 1998 in

full compliance with the January 6, 1997 agreement.

64 Fed. Reg. 37,644, 37,656 (1999)(to be codified and hereinafter

referred to as 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 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).

The record contains a copy of an IDP signed by complainant and his

supervisor on October 1, 1998. The IDP specifically includes Project

Management training courses. This inclusion is in compliance with

provision (2) of the settlement agreement, which stipulates that the IDP

�could include participation in Risk Management and Project Management

training courses.� On appeal, complainant does not address the October 1,

1998 IDP he and his supervisor signed. Upon review, the Commission finds

that the agency properly concluded that it did not breach the terms of

the settlement agreement. Specifically, we find that the agency carried

out its obligations under provision (2) of the settlement agreement;

an IDP including Project Management training courses was developed

addressing complainant's future career plans. We find further that the

complainant has failed to present persuasive evidence that the agency

breached provision (2) of the agreement between the parties. It is

the decision of this Commission that the agency complied with the terms

of the settlement agreement. Accordingly, the Commission AFFIRMS the

agency's decision finding that it did not breach the settlement agreement.

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:

Dec. 22, 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. 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.