0120103614
11-12-2010
Richard M. Stercz, Complainant, v. Gary Locke, Secretary, Department of Commerce, (Bureau of the Census), Agency.
Richard M. Stercz,
Complainant,
v.
Gary Locke,
Secretary,
Department of Commerce,
(Bureau of the Census),
Agency.
Appeal No. 0120103614
Agency No. 09-63-00669D
DECISION
Upon review, the Commission finds that the Agency properly determined that it did not breach a settlement agreement that the parties entered into resolving Complainant's complaint. See 29 C.F.R. � 1614.504. The Agency's determination not to reinstate Complainant's complaint is AFFIRMED.
BACKGROUND
On April 15, 2010, the parties entered into a settlement agreement resolving the complaint. The settlement agreement provided, in pertinent part, that the Agency will:
3. a. Make payment to Complainant by a check in the amount of $3,000;
b. Provide a 2010 Census coffee mug to Complainant; and,
c. Assistant Regional Census Manager, Detroit Regional Office, Bureau of the Census, will undertake the supervisory training entitled "Reasonable Accommodation and You" within 60 days of the effective date of this Agreement.
Thereafter, on June 4, 2010, Complainant claimed that management did not comply with item 3.a of the settlement agreement. The parties do not dispute items 3.b. and 3.c. of the settlement agreement.
ANALYSIS AND FINDINGS
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 (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. Dep't 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 O v. U.S. Postal Serv., 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 response to Complainant's claim, the Agency stated that the parties agreed for the $3,000 to be directly deposited to Complainant's bank account rather then paid by check. On appeal, Complainant does not dispute this. On May 25, 2010, the Agency processed a payment to Complainant for $3,000. Complaint File, at 104. However, the record indicates that the payment was canceled with a reason code of TOP (Treasury Offset Program) HELD. Id. Complainant claimed that the TOP call center informed him that the Department of Education had taken the $3,000. It appears that the U.S. Treasury's Financial Management Services, which processed payments to and from federal agencies, had taken the $3,000 under TOP due to Complainant's outstanding student loans from the Department of Education. Upon review, despite the subsequent collection made by the Department of Education, we find that the Agency paid the $3,000 to Complainant under the settlement agreement.
Accordingly, the Agency's decision finding no settlement breach is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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
11/12/10
__________________
Date
2
0120103614
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013