01A32172_r
08-05-2003
Charley E. Butler, Complainant, v. Dr. James G. Roche, Secretary, Department of the Air Force, Agency.
Charley E. Butler v. Department of the Air Force
01A32172
August 5, 2003
.
Charley E. Butler,
Complainant,
v.
Dr. James G. Roche,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 01A32172
Agency No. 9R1M02282
DECISION
Complainant filed a timely appeal with this Commission from a final
decision dated January 28, 2003, finding that it was in compliance with
the terms of an October 22, 2002 settlement agreement. See 29 C.F.R. �
1614.402; 29 C.F.R. � 1614.504(b); and 29 C.F.R. � 1614.405.
The October 22, 2002 settlement agreement provided, in pertinent part,
that:
This agreement will be accomplished by [named Lieutenant Colonel] by the
15th of November 2002. In addition, management will retract the Letter
of Counseling of 23 Aug 02 immediately.
[Complainant] agrees to provide paper copies of e-mail requests through
WR-ALC/LF for assistance in kit unit problems and to provide a bullet
background paper, which denotes problem areas of kit shortages-shortened
version, specifying parameters current kits on hand.
On or about December 30, 2002, complainant alleged breach of the
settlement agreement. Complainant claimed that a named Major and
Lieutenant Colonel placed a letter of counseling in his file on August
23, 2002, and disciplined him for doing his job.
In its January 28, 2003 final decision, the agency found no breach.
The agency addressed both elements of the above cited provisions
(regarding the retraction of the Letter of Counseling and assistance in
kit unit problems). Specifically, the agency stated that according to the
named Major, complainant, and not the agency, incurred an obligation
under the terms of the agreement, to provide a detailed history and
description of the problems he encountered with the kit unit in a bullet
background paper. The named Major stated that a Lieutenant Colonel
would then use complainant's bullet background paper when discussing
with upper management but that complainant has not provided the bullet
background paper as agreed. The agency also determined that the Letter
of Counseling identified in the settlement agreement had been destroyed.
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).
Regarding the provision relating to the Letter of Counseling, we
determine that the agency properly found no breach. The settlement
agreement states that the agency agrees to retract complainant's Letter
of Counseling dated August 23, 2002, immediately. The record contains
evidence that the agency was in substantial compliance with respect to
the Letter of Counseling. The record contains an affidavit dated April
4, 2003, from named Major reflecting that on or about October 22, 2002,
the referenced Letter of Counseling dated August 23, 2002 was removed
from complainant's personnel record.
Regarding the terms of the agreement concerning the difficulties
complainant encountered with the kit unit, we concur with the agency's
assessment that it incurs no legal obligation under the settlement
agreement , but rather provides for action to be taken by complainant
on this matter.
Accordingly, the agency's finding that it complied with the terms of
the settlement agreement is AFFIRMED.
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 (S0900)
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 (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
August 5, 2003
__________________
Date