0120080076
03-30-2009
Benjamin V. Tafoya, Complainant, v. Tom Vilsack, Secretary, Department of Agriculture, Agency.
Benjamin V. Tafoya,
Complainant,
v.
Tom Vilsack,
Secretary,
Department of Agriculture,
Agency.
Appeal No. 0120080076
Agency No. FS-2005-00625
DECISION
JURISDICTION
Complainant filed a timely appeal with this Commission indicating that
the agency was not in compliance with the terms of the April 4, 2007,
settlement agreement into which the parties entered. See 29 C.F.R. �
1614.402; 29 C.F.R. � 1614.504(b); and 29 C.F.R. � 1614.405.
The settlement agreement provided, in pertinent part, that the agency
would:
(1) Retroactively promote complainant to GS-14, Supervisory Criminal
Investigator from March 16, 2005 until December 31, 2005, the effective
date of complainant's retirement. The parties agree that the retroactive
promotion will include back pay and any applicable benefits.
(2) Consistent with its obligation and usual practice, the agency
will provide the appropriate assistance with any requests from the Office
of Personnel Management ("OPM") related to any change in complainant's
retirement benefits as a result of the retroactive promotion.
(3) Pay all reasonable and documented attorney's fees not to exceed
$17,500.
By letter to the agency dated August 13, 2007, complainant alleged that
the agency was in breach of the settlement agreement, and requested that
the agency specifically implement its terms. Specifically, complainant
alleged that the settlement agreement was signed on April 4, 2007, but
the agency had failed to process the agreed upon terms of the settlement
agreement. Complainant argued that four months was an adequate period
of time for the agency to have processed the agreed upon terms. He also
maintained that he had received no communication from the agency regarding
this matter.
On September 21, 2007, by letter to the Commission complainant indicated
that the agency had not responded to his August 13, 2007, letter.
Complainant asked the Commission to intervene.
By letter to the Commission, dated October 26, 2007, complainant
indicated that he had received a check for $4,272.26, from the agency
but no accompanying letter was enclosed so he did not know exactly what
the check covered. He also indicated that he did not know whether his
attorney had been paid. Complainant asked the Commission to request a
detailed explanation from the agency regarding the monetary compensation
owed to him.
In its November 20, 2007, FAD, the agency concluded that it had complied
with the settlement agreement and provided documentation supporting its
finding.
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 O 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).
In the instant case, while we agree that the agency took an extended
amount of time to process the terms of the settlement agreement,
the Commission finds that the agency has not breached the agreement.
Based on our review of the record, we find the agency supplied supporting
documentation, detailing complainant's compensation, communications with
OPM, and payment of attorney's fees.
CONCLUSION
Accordingly, the agency's finding of no breach of the instant settlement
agreement is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 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 (S0408)
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 (Z1008)
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
03/30/09
__________________
Date
2
0120080076
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 77960
Washington, D.C. 20013