01A24437_r
01-30-2003
Guy Boisvert, Complainant, v. Dr. James G. Roche, Secretary, Department of the Air Force, Agency.
Guy Boisvert v. Department of the Air Force
01A24437
January 30, 2003
.
Guy Boisvert,
Complainant,
v.
Dr. James G. Roche,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 01A24437
Agency No. RFOD-02-020
DECISION
Complainant filed a timely appeal with this Commission from the agency's
August 9, 2002 final decision finding no breach of a June 24, 2002
settlement agreement. The Commission accepts the appeal. See 29 C.F.R. �
1614.402; 29 C.F.R. � 1614.504(b); and 29 C.F.R. � 1614.405.
The June 24, 2002 settlement agreement provided, in pertinent part, that:
The agency will provide to the complainant a letter signed by the Chief,
Human Resources Office (HRO), Subject: Physical Accommodation, detailing
the agency's efforts to accommodate the complainant.
In pertinent part, the HRO letter, which was drafted in conjunction with
the settlement agreement, reads as follows:
...the agency placed [complainant] into a position the agency legitimately
believed was within the physical limitations diagnosed by [Physical
Therapist], as follows:
An occupation that involves only very occasional light lifting activities
that can safely be accomplished using his left arm only. He would
appear suited to a desk-based position, where the workstation does not
necessitate any sustained reaching activities with his right arm and
where he would be able to vary the tasks accomplished as necessary,
to avoid any sustained stresses through his right arm.
...Therefore, based upon [complainant's] assessment of his capabilities
as identified in paragraph 1, there is no position which will fully
accommodate [complainant's] physical limitations.
By letter to the agency dated July 11, 2002, complainant claimed that
the agency breached the above referenced provision of the settlement
agreement. Specifically, complainant asserted that the settlement
agreement/HRO letter reflected the agency's acknowledgment that it had no
jobs with duties that would accommodate complainant's left arm impairment,
such that the agency breached the settlement agreement when it submitted a
response opposing complainant's claim for workers' compensation indicating
that it indeed had several positions to accommodate complainant's
limitation. Complainant maintained that he only agreed to withdraw his
EEO complaint based on his belief that the agency provided him with an
admission that it had no jobs for him, and that he is not getting the
benefit of his bargain.<1> Complainant requested specific performance.
In its final decision, the agency determined that the settlement
agreement did not reflect an agency admission that it has no jobs to
accommodate complainant's limitations, but only that it has no jobs
�based upon [complainant's] assessment of his capabilities.� Moreover,
the agency determined that complainant and his attorney participated
in crafting the language of the settlement agreement, as well as the
letter referenced in the provision at issue, and agreed to the wording
prior to signing. Additionally, the agency noted that on July 9, 2002,
it responded to complainant's Motion for Summary Judgment concerning
complainant's workers' compensation claim filed under the Longshore and
Harbor Workers' Compensation Act (in the action of Boisvert v. Air Force
Insurance Fund, Case No. 2002-LHC-805), and that it was this response that
provoked the breach claim. The agency further noted that this response
to the Motion for Summary Judgement only stated that it had �suitable
alternate employment� and not �several jobs.� As a final matter, the
agency noted that even during the settlement agreement negotiations
the agency attempted to offer complainant suitable employment, but that
complainant chose to have the HRO letter instead.
On appeal, complainant, through his attorney, argues that he clearly
communicated to agency representatives, both before and during settlement
negotiations, that he would withdraw his EEO complaint for an admission
that it had no jobs that would accommodate his limitations so that he
could use this admission in pursuing a workers' compensation claim under
the Longshore and Harbor Workers' Compensation Act. Complainant argues
that the HRO letter reflects an expert medical opinion provided by
complainant, and a statement by an agency official that it had no jobs
that would accommodate complainant in light of that opinion, such that
he believed that it constituted the desired admission. Additionally,
complainant argues that the standard settlement agreement language
was altered to ensure that this admission could then be used in his
workers' compensation claim.<2> However, complainant avers that when he
filed a Motion for Summary Judgment in the workers' compensation claim
proceedings, on the basis of this admission, the agency breached the
settlement agreement when it filed a response objecting to the motion,
claiming that it had suitable employment for complainant.
Complainant argues that either the agency intended that the settlement
agreement provide him with the admission sought, and then breached
that agreement in its response to his Motion for Summary Judgment; or,
alternatively, that the agency never intended to make this admission,
such that complainant did not receive the benefit of his bargain.
Complainant avers that it would seem that the agency engaged in bad
faith if it construed the HRO letter as giving him essentially nothing
in return for withdrawing his EEO complaint. Complainant asks that the
Commission enforce the agreement as understood by him and his attorney.
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).
We find that the record demonstrates that complainant withdrew his
EEO complaint believing that the HRO letter mandated by the settlement
agreement constituted the agency's formal and legally binding admission
that it had no jobs within his medical restrictions. We further find
that complainant's belief was reasonable because the record reflects
that complainant agreed to execute the settlement agreement contingent
on his approval of the language in the HRO letter, which was drafted
contemporaneously with the settlement agreement. We further determine
that the record supports a finding that complainant only executed the
settlement agreement believing that the HRO letter constituted the
agency's admission that it had no jobs within his medical restrictions.
Moreover, we also find that the record reflects that the agency never
intended to provide complainant with the bargained for admission, as
evidenced by its subsequent declaration that the HRO letter was not the
admission sought by complainant. Instead, the agency argues that it
complied with the settlement agreement, while at the same time making
this declaration, because complainant and his attorney were actively
involved in drafting the HRO letter. The agency in essence argues
that complainant assumed the risk that the HRO letter constituted such
an admission, or that it would not be contested by the agency as such.
The Commission will not set aside a settlement agreement because one of
the parties brokered a bad bargain; however, in this case complainant
received no consideration for withdrawing his EEO complaint. The only
admission the agency makes here is that the HRO letter is meaningless
because it merely reflects complainant's personal assessment of his
limitations and his inability to perform the duties of the various
positions offered to him by the agency.
The Commission has consistently held, that where the promisor receives
no benefit and the promisee suffers no detriment, the whole transaction
is a nudum pactum, and the settlement agreement is unenforceable. See
Collins v. United States Postal Service, EEOC Request No. 05900082
(April 26, 1990). In this case, the agency admits the HRO fails to
provide complainant with the benefit bargained for, and there is no
evidence to suggest that the agency otherwise incurred a legal detriment
in issuing the HRO letter. Therefore, based on the foregoing, we find
that the settlement agreement is unenforceable, and in accordance with
regulations, the agency must reinstate complainant's complaint for
further processing from the point processing ceased.
Accordingly, we VACATE the agency's final decision and REMAND the matter
to the agency to undertake the actions set forth in the ORDER below.
ORDER
The agency is ORDERED to resume processing of complainant's complaint
from the point where processing ceased. The agency shall acknowledge to
complainant that it has reinstated and resumed processing of complainant's
complaint.
A copy of the agency letter of acknowledgement must be sent to the
Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
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 complainant. If the agency does not comply with the Commission's
order, the complainant may petition the Commission for enforcement
of the order. 29 C.F.R. � 1614.503(a). The complainant 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. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g).
Alternatively, the complainant 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. �� 1614.407 and 1614.408.
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)
(1994 & Supp. IV 1999). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 (R0900)
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 within ninety (90) calendar days from the date
that you receive this decision. 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 (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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
January 30, 2003
__________________
Date
1In his underlying complaint, complainant claimed that the agency
unlawfully terminated his employment when he failed to report to work due
to the agency's failure to provide him with a reasonable accommodation,
thereby also terminating his eligibility for workers' compensation
benefits.
2Paragraph 3(a) of the settlement agreement reads, in pertinent part,
as follows: The terms of this agreement will not...be used as a basis by
the complainant...to seek or justify similar terms in any civil action or
subsequent case, except with regard to the complainant's pending Workers'
Compensation claim as set forth in the Longshore and Harbor Workers'
Compensation Act. (Emphasis added.)