0120120372
03-29-2012
Charles T. Jenkins, Jr., Complainant, v. John M. McHugh, Secretary, Department of the Army, Agency.
Charles T. Jenkins, Jr.,
Complainant,
v.
John M. McHugh,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120120372
Agency No. ARSILL06DEC04656
DECISION
Complainant filed a timely appeal with this Commission from a final
decision (FAD) by the Agency dated September 15, 2011, finding that
it was in compliance with the terms of the 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked
as a Community Service Director at the Agency’s Directorate of Family
and Morale, Welfare and Recreation facility in Fort Sill, Oklahoma.
Believing that the Agency subjected him to unlawful discrimination,
Complainant contacted an Agency EEO Counselor to initiate the EEO
complaint process. On May 1, 2007, Complainant and the Agency entered
into a settlement agreement to resolve the matter. The settlement
agreement provided, in pertinent part, that:
(4a) Within thirty (30) days of the signing of this Agreement,
[Complainant’s supervisor], Director, Directorate of Morale, Welfare,
Recreation (‘MWR’) and Family Programs will schedule and hold a
meeting with the Army Community Service (‘ACS’) Program Managers
and Complainant. At that meeting, [Complainant’s supervisor] will
discuss the procedures to be used by the ACS Program Managers in making
complaints about their supervisor(s). [Complainant’s supervisor]
will maintain her ‘open door’ policy but the Program Managers will
be told that they are to utilize their respective chain of command in
making such complaints. …
By letter to the Agency dated August 11, 2011, Complainant alleged that
the Agency was in breach of the settlement agreement, and requested that
the Agency specifically implement its terms. Complainant alleged that the
Agency allowed Complainant’s subordinate employee to bypass Complainant
in reporting an allegation of Complainant’s alleged misconduct directly
to Complainant’s supervisor in violation of provision 4a of the
negotiated settlement agreement. Complainant further alleged that the
Agency engaged in retaliatory harassment when it suspended Complainant
for 3 days as a result of the incident reported by Complainant’s
subordinate employee.
In its September 15, 2011 FAD, the Agency concluded that Complainant
failed to establish that the Agency breached the agreement as alleged.
In reaching this conclusion, the Agency indicated that the subordinate
employee cited by Complainant in this matter is not under Complainant’s
supervision. Therefore, the employee did not violate the agreement when
he went directly to Complainant’s supervisor regarding allegations
of Complainant’s misconduct. The Agency further indicated that
Complainant’s allegations of retaliatory harassment regarding the 3-day
suspension issued to Complainant raise a new claim of discrimination
not addressed by the settlement agreement.
ANALYSIS
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 the instant case, Complainant alleges that the Agency violated the
settlement agreement when Complainant’s subordinate employee went
directly to Complainant’s supervisor with allegations of Complainant’s
misconduct. Upon review, the Commission finds that Complainant has
failed to demonstrate that the Agency breached the Agreement as alleged.
Specifically, Complainant has produced no evidence that the subordinate
employee was within Complainant’s chain-of-command therefore requiring
him to report the alleged misconduct directly to Complainant as opposed
to going to Complainant’s supervisor.
Further, to the extent Complainant alleges that he was subjected to
retaliatory harassment, the Commission notes that this is a new claim
of discrimination and Complainant is advised therefore, to comply with
the Agency’s instructions for commencing a new action if he has not
already done so.
CONCLUSION
Accordingly, the Commission finds no breach of the settlement agreement
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
March 29, 2012
__________________
Date
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0120120372
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120120372