0120110349
08-25-2011
Charles Martinsen, Complainant, v. Timothy F. Geithner, Secretary, Department of the Treasury, (Internal Revenue Service), Agency.
Charles Martinsen,
Complainant,
v.
Timothy F. Geithner,
Secretary,
Department of the Treasury,
(Internal Revenue Service),
Agency.
Appeal No. 0120110349
Agency Nos. IRS-07-0054-F, IRS-07-0792-F,
IRS-07-1012-F, IRS-08-1012-F
DECISION
Complainant filed an appeal with this Commission regarding the terms of
the March 28, 2008 settlement agreement into which the parties entered.
For the following reasons, the Commission AFFIRMS the Agency’s decision.
BACKGROUND
The settlement agreement1 provided, in pertinent part, that:
1. The agency agrees to the following:
(a) The Complainant will be detailed to the Agency Wide Shared
Services and Diversity office located in Baltimore, Maryland, for a
period of one hundred and twenty (120) calendar days. The Complainant will
report to [the] Director, Treasury Complaint Mega Center. The Complainant
will serve as an advisor to [the Director] by providing data reports
and analysis as assigned. The Complainant will remain at his current
grade level of GS-13 and will remain on his 5/4/9 AWS schedule. The
detail will commence within thirty (30) days of the effective date of
this Agreement. Until such time as the detail to Baltimore commences,
the Complainant will remain on his current detail within Finance.
(b) The Complainant may work from his home one day per week so long
as the Complainant remains under the direction of the Commissioner of
the Small Business Self-Employed Division. Complainant may choose which
day he would like to work from home and will speak to his first level
manager to gain approval.
(c) To restore to Complainant 74 hours of sick leave and 74 hours
of annual leave within sixty (60) days of the effective date of this
Agreement.
(d) In 2008, the Complainant will be approved to attend the EEO
Excel Conference, the EEOC Technical Assistance Seminar, USDA Briefing
Techniques, and the Federally Employed Women Conference.
(e) To pay the Complainant compensatory damages in the amount of
three thousand dollars ($3,000). This payment will be made within ninety
(90) days of the effective data of this Agreement
(f) To supply Complainant with a neutral letter of reference within
14 days of the effective date of this Agreement. The letter will include
Complainant's title, pay grade, dates of employment, salary, and position
description.
(h) To remove the 2006 and 2007 counseling memoranda from
Complainant's performance file within fourteen (14) days of the effective
date of this Agreement.
(i) The Complainant's departure rating from his January to March
2008 detail to Finance shall serve as his mid-year review for his 2008
rating period.
Previously, in Martinsen v. Dep’t of the Treasury, EEOC Appeal
No. 0120083674 (Dec. 23, 2008), request for reconsideration denied,
EEOC Request No. 0520090166 (July 1, 2009), the Commission considered
nine allegations of non-compliance related to provisions (a), (b), (c),
(d), (f), (h), and (i) of the Settlement Agreement.
In the instant appeal, Complainant submits to the Commission evidence
that subsequent to the execution of the identified Settlement Agreement,
Complainant learned that the Agency has advanced the position that
Complainant suffers from allergic paranoid delusions and that unknown to
Complainant, medical professionals advised the Agency to move Complainant
to the Agency’s Baltimore Office in 2007. Complainant notes that
the Agency did not move Complainant’s work station to Baltimore until
April 2008.
Complainant states that the Settlement Agreement must be deemed void
because based upon the Agency’s own admissions, no meeting of the
minds has occurred. Complainant requests that his settled complaints
must be reinstated at the point where processing previously ceased.
Complainant’s Motion to Compel OFO to Void the Settlement Agreement,
(Cp Motion) October 14, 2010, at 1.
On appeal, Complainant states that on September 15, 2010, an Agency
Official represented to an EEOC Administrative Judge (AJ) (in connection
with a subsequent complaint2), that Complainant suffered from allergic,
paranoid delusions or hallucinations while working at his former duty
station. Complainant therefore requests that the Commission void the
Settlement Agreement on the grounds that the Agency’s representations
indicate the Agency’s knowledge that he lacked the capacity to
enter into the Settlement Agreement at the time it was executed.
Complainant’s Appeal [Statement], supra.
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).
Because the Commission favors the voluntary resolution of discrimination
complaints, settlement agreements are not lightly set aside. Betts
v. EEOC, EEOC Appeal No. 0120091969 (October 14, 2009), request for
reconsideration denied, EEOC Request No. 0520100112 (Feb. 14, 2011).
As a preliminary matter, we consider whether Complainant’s appeal filed
October 14, 2010, is properly before the Commission. Complainant’s
appeal, which he denominates as a “motion,” appears to have been
prompted by the purported representations of the Agency’s counsel during
the hearing of two subsequent consolidated complaints, Agency case numbers
IRS 09-0090 and 09-0290. Complainant states that in September 2010,
during presentation of the Agency’s evidence in those cases, the Agency
advanced the position that Complainant’s various complaints against
the Agency “have the flavor of paranoia, delusions and hallucinations
(transitory, historical psychotic episodes). . . .” Complainant’s
Appeal, November 12, 2010, Attachment 1. Therefore, Complainant requests
that the Commission find that the Settlement Agreement is void.
We deem the Agency to have denied Complainant’s request to void the
Settlement Agreement of March 28, 2008.
We find that both parties have at least in part, performed or discharged
their obligations and derived the benefits contemplated by the Settlement
Agreement, thus ratifying by conduct, the identified Agreement in
the months immediately following its execution. We further note that
Complainant takes the position that his performance rating during his
detail to the Baltimore office described in provision 1(a) should have
been “outstanding”, which rating would appear to be at odds with a
determination that Complainant lacked the mental capacity to enter into
a valid agreement only days before its commencement in March 2008.
Complainant’s April 20, 2011 [Brief on] Appeal, April 20, 2011;
EEOC Appeal No 0120112155, Record on Appeal at 10 of 904. We find
that Complainant has failed to show that he did not knowingly and/or
voluntarily enter the Settlement Agreement. We find that Complainant
did not show he lacked capacity to enter the Settlement Agreement.
We therefore decline to find the Agreement should be set aside as
Complainant requests. See Archie Reeves v. Dep’t of Veterans Affairs,
EEOC Appeal No. 01A11777 (May 24, 2001).
CONCLUSION
The Commission AFFIRMS the Agency’s determination upholding the validity
of the Settlement Agreement of March 28, 2008.
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 (Nov. 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
August 25, 2011
__________________
Date
1 We observe that the Settlement Agreement states that it resolves
the following Agency cases: Agency Nos. IRS-07-0054-F, IRS-07-0792-F,
IRS-07-1012-F, IRS-08-1012-F, together with “any other unidentified EEO
complaints, formal or informal.” Settlement Agreement Between Charles
Martinsen and Department of the Treasury, Internal Revenue Service,
(Settlement Agreement) March 28, 2008, at 2.
2 The evidence accompanying Complainant’s appeal does not indicate
the Agency case number or EEOC Hearing number for the complaint at issue
wherein this testimony was adduced.
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0120110349
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120110349