Eric A. Shrader, Appellant,v.Daniel R. Glickman, Secretary, Department of Agriculture, Agency.

Equal Employment Opportunity CommissionApr 28, 1999
01983442_r (E.E.O.C. Apr. 28, 1999)

01983442_r

04-28-1999

Eric A. Shrader, Appellant, v. Daniel R. Glickman, Secretary, Department of Agriculture, Agency.


Eric A. Shrader, )

Appellant, )

)

v. ) Appeal No. 01983442

) Agency Nos. 931109 & 931222

Daniel R. Glickman, )

Secretary, )

Department of Agriculture, )

Agency. )

______________________________)

DECISION

INTRODUCTION

Appellant timely appealed the agency's final decision not to reinstate

his complaint of unlawful employment discrimination that the parties

had settled. See 29 C.F.R. ��1614.504, .402(a); EEOC Order No. 960,

as amended.

ISSUE PRESENTED

The issue on appeal is whether the agency breached a settlement agreement.

BACKGROUND

The record indicates that on November 9, 1993, and December 22, 1993,

appellant filed two formal complaints alleging, in part, that on June 10,

1993, he was issued a memorandum from his former supervisor containing

a negative assessment of his performance. Thereafter, on January 28,

1994, the parties entered into a settlement agreement resolving these

complaints, which provided, in pertinent part, that:

The agency would rescind the June 10, 1993 memorandum, and give all copies

of the memorandum to appellant for destruction, and never reference the

memorandum, for any purpose.

The record indicates that appellant previously alleged a breach of the

settlement agreement when in May 1994, the agency released the subject

memorandum to the Merit Systems Protection Board (MSPB) in response

to a discovery order. Appellant appealed the agency's finding of no

settlement breach. The Commission, in EEOC Appeal No.01961499 (November

3, 1997), previously reversed the agency's decision and remanded the

matter for implementation of the settlement agreement.

Meanwhile, by letters dated June 21, 1996 and July 22, 1996, appellant

alleged that the agency breached the settlement agreement when on May

24, 1996, the agency provided a copy of the June 10, 1993 memorandum

to an EEOC Administrative Judge (AJ) in response to a motion to compel,

and when on July 22, 1996, it released a copy of the memorandum in its

exhibit list to the AJ.

On October 13, 1998, the agency stated that before May 24, 1996,

the agency provided a copy of the subject memorandum to appellant in

response to a discovery request by appellant, which asked for �all

documents.� The agency further indicated that in the Spring of 1996,

appellant filed a motion to compel, and in response to that motion,

the subject memorandum was provided to the AJ to make a determination

on the motion to compel. The agency stated that although it did not

feel that the above action, as well as its action on July 22, 1996,

constituted a breach of the settlement agreement, it recognized that,

after the Commission's previous decision, it should not have released

and would not release the subject memorandum in the future.

ANALYSIS AND FINDINGS

EEOC Regulation 29 C.F.R. �1614.504 provides that if the complainant

believes that the agency failed to comply with the terms of a settlement

agreement, the complainant should notify the Director of Equal Employment

Opportunity, in writing, of the alleged noncompliance with the settlement

agreement, within thirty (30) days of when the complainant knew or should

have known of the alleged noncompliance. The complainant may request that

the terms of the settlement agreement be specifically implemented or,

alternatively, that the complaint be reinstated for further processing

from the point processing ceased.

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 final decision.

The Commission has held that settlement agreements are contracts between

the appellant and the agency and it is the intent of the parties as

expressed in the contract, and not some unexpressed intention, that

controls the contract's construction. Eggleston v. Department of Veterans

Affairs, EEOC Request No. 05900795 (August 23, 1990). In addition, the

Commission generally follows the rule that if a 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 v. Building Engineering Services,

730 F.2d 377 (5th Cir. 1984). The Commission has followed this rule

when interpreting settlement agreements. The Commission's policy in

this regard is based on the premise that the face of the agreement best

reflects the understanding of the parties.

A review of the settlement agreement reveals that the agency agreed

to rescind the June 10, 1993 memorandum, and give all copies of the

memorandum to appellant for destruction, and never reference the

memorandum, for any purpose. The record indicates that the agency

provided a copy of the subject memorandum to the AJ on May 24, 1996,

and July 22, 1996. We, upon review, find that the agency's actions,

described above, constituted a breach of the settlement agreement.

We note that the settlement agreement clearly provides that the agency

would not include/reference that memorandum for any purpose.

CONCLUSION

Accordingly, the agency's decision finding no breach of the settlement

agreement is REVERSED and the case is REMANDED to the agency for

implementation of the agreement.

ORDER

The agency is ORDERED to specifically enforce the January 28, 1994

settlement agreement with regard to the June 10, 1993 memorandum.

Specifically, the agency shall neither include nor reference that

memorandum for any purpose. The agency shall provide documentation

of the specific enforcement of the subject agreement to the Compliance

Officer as referenced below.

IMPLEMENTATION OF THE COMMISSION'S DECISION (K0595)

Compliance with the Commission's corrective action is mandatory. The

agency shall submit its compliance report within thirty (30) calendar

days of the completion of all ordered corrective action. The report

shall be submitted to the Compliance Officer, Office of Federal

Operations, Equal Employment Opportunity Commission, P.O. Box 19848,

Washington, D.C. 20036. The agency's report must contain supporting

documentation, and the agency must send a copy of all submissions to

the appellant. If the agency does not comply with the Commission's

order, the appellant may petition the Commission for enforcement of

the order. 29 C.F.R. �1614.503(a). The appellant also has the right

to file a civil action to enforce compliance with the Commission's

order prior to or following an administrative petition for enforcement.

See 29 C.F.R. ��1614.408, 1614.409, and 1614.503(g). Alternatively,

the appellant has the right to file a civil action on the underlying

complaint in accordance with the paragraph below entitled "Right to File

A Civil Action." 29 C.F.R. ��1614.408 and 1614.409. A civil action for

enforcement or a civil action on the underlying complaint is subject to

the deadline stated in 42 U.S.C. �2000e-16(c) (Supp. V 1993). If the

appellant files a civil action, the administrative processing of the

complaint, including any petition for enforcement, will be terminated.

See 29 C.F.R. �1614.410.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0795)

The Commission may, in its discretion, reconsider the decision in this

case if the appellant or the agency submits a written request containing

arguments or evidence which tend to establish that:

1. New and material evidence is available that was not readily available

when the previous decision was issued; or

2. The previous decision involved an erroneous interpretation of law,

regulation or material fact, or misapplication of established policy; or

3. The decision is of such exceptional nature as to have substantial

precedential implications.

Requests to reconsider, with supporting arguments or evidence, MUST

BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this

decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive

a timely request to reconsider filed by another party. Any argument in

opposition to the request to reconsider or cross request to reconsider

MUST be submitted to the Commission and to the requesting party

WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request

to reconsider. See 29 C.F.R. �1614.407. All requests and arguments

must bear proof of postmark and 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 filed on the date it is received

by the Commission.

Failure to file within the time period will result in dismissal of your

request for reconsideration as untimely. If extenuating circumstances

have prevented the timely filing of a request for reconsideration,

a written statement setting forth the circumstances which caused the

delay and 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).

RIGHT TO FILE A CIVIL ACTION (R0993)

This is a decision requiring the agency to continue its administrative

processing of your complaint. However, if you wish to file a civil

action, you have the right to file such action in an appropriate United

States District Court. It is the position of the Commission that 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. You should be aware, however, that courts in some

jurisdictions have interpreted the Civil Rights Act of 1991 in a manner

suggesting that a civil action must be filed WITHIN THIRTY (30) CALENDAR

DAYS from the date that you receive this decision. To ensure that your

civil action is considered timely, you are advised to file it WITHIN

THIRTY (30) CALENDAR DAYS from the date that you receive this decision

or to consult an attorney concerning the applicable time period in the

jurisdiction in which your action would be filed. In the alternative,

you may file a civil action AFTER ONE HUNDRED AND EIGHTY (180) CALENDAR

DAYS of the date you filed your complaint with the agency, or filed your

appeal with the Commission. 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.

Filing a civil action will terminate the administrative processing of

your complaint.

RIGHT TO REQUEST COUNSEL (Z1092)

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:

April 28, 1999

DATE Ronnie Blumenthal, Director

Office of Federal Operations