0120082559
08-20-2008
Christopher S. McDonald, Complainant, v. Michael W. Wynne, Secretary, Department of the Air Force, Agency.
Christopher S. McDonald,
Complainant,
v.
Michael W. Wynne,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 0120082559
Agency No. 5E0J07007
DECISION
Complainant filed a timely appeal with this Commission from an agency
decision dated March 13, 2008, finding that it was in compliance with
the terms of the October 31, 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:
3.(a) Within 30 calendar days, or as soon as practicable, from the last
dated signature on this agreement 47 FTW/MX will hire complainant as
a WG-3502-02 laborer for the T1 Aircraft through the Student Temporary
Employment Program (STEP) provided he obtains clearance upon physical
examination and evidence by Standard Form 78, if needed.
***
5. The agency and complainant agree that this settlement, its
terms and conditions, are to be confidential. This agreement will
not be released by either party unless required by law, agreed to by
both parties, or as necessary to implement this agreement. If there
is a possible release, e.g., FOIA, the agency will notify complainant
and provide a reasonable time to object. The parties acknowledge and
understand that this confidentiality clause does not preclude either
party from discussing the agreement to the extent necessary based on
a legitimate need to know basis. To this end, the agency's pledge
of confidentiality pertains to official business and to principals
involved in this action, complainant's supervisors, counsel, and the
Civilian Personnel office; routine conversations, beyond Agency control,
by rank and file co-workers do not constitute a breach of this clause.
The agency will exercise its control to the fullest extent possible,
toward maintaining confidentiality.
By letter to the agency dated February 22, 2008, complainant alleged that
the agency was in breach of the settlement agreement. Specifically,
referencing section 5, complainant alleged that the agency failed to
"notify the Complainant of any possible release (termination) from
employment and a possible time to object." Additionally, complainant
asserted that the agency failed to follow the STEP Program standards,
of either six-month or one-year intervals, when complainant was given
less than two months of employment. The settlement was also breached,
alleged complainant, when complainant was assigned to "Club XL as a
dish washer" instead of a WG-2 laborer in the T1 Aircraft. Lastly,
complainant challenged the agency's conduct during the mediation,
claiming that they negotiated in bad faith.
In its March 13, 2008 decision, the agency concluded the agreement was
not breached. With respect to provision (5), the agency reasoned that
complainant misread the paragraph. It did not apply to complainant's
release for employment, but rather the confidentiality of the agreement.
As for the STEP standards, the agency believed that complainant failed
to indicate how management breached the agreement. If complainant was
challenging the length of his appointment, the agency stated that 30, 60
or 90 day assignments are permitted. Regarding the hiring of complainant
as a WG-3502 Laborer for the T1 Aircraft, the agency concluded that
complainant's allegation was untimely. He was assigned to his position
in November 2007 and complainant waited more than thirty days to allege
breach. Even assuming the claim was timely, the agency stated that there
was no breach because on November 26, 2007 the agreement was modified.
The agency explained that complainant agreed in writing to remove the
requirement that he be assigned to the T1 section. Further, the agency
noted that complainant "also acknowledged and verbally agreed that he
would be assigned to work in Club XL."
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 we agree that complainant appears to have
misunderstood section 5 of the agreement. As stated by the agency,
portion 5 merely sets forth the parties' obligations as to the
confidentiality of the agreement. The settlement language does not
entitle complainant to an opportunity to object to his termination.
Consequently, the Commission finds that provision 5 was not breached.
Regarding the duration of his appointment, there is no evidence in the
record that the agency was obligated to keep complainant in the position
for 6 months or a year. Therefore, we do not find that the agreement was
violated when complainant was terminated after less than two months.
With respect to the placement of complainant at Club XL as a dishwasher,
rather than a "WG 3502-02 laborer for the T1 Aircraft" as clearly stated
in the agreement, the Commission is not persuaded by the agency's
contention that the settlement was later modified. As noted above,
the agency contends that on November 26, 2007 complainant agreed to
remove the requirement. In support, the agency has provided a copy
of the settlement agreement, with the portion "will hire Complainant
as a WG-3502-02 laborer for the T1 Aircraft" redacted. Although the
page bears two sets of initials, these initials are also present on
another copy of the agreement that is not redacted. Moreover, we note
that provision 3.(a) makes no sense with the removal of the redacted
section, and no additional notations are on the document. Therefore,
we find that the agency was required to hire complainant as a laborer
for the T1 Aircraft.
However, the Commission does agree with the agency that complainant's
allegation of breach was untimely raised. The record establishes that
complainant was placed in the position on November 26, 2007. He did
not claim breach until approximately three months later, on February 22,
2008, well beyond the thirty-day time limitation.
Finally, we do not find that the record supports complainant's broad
claims of bad faith on the part of the agency. Accordingly, the agency's
decision finding no breach was proper and is hereby AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0408)
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 (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 (Z0408)
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 20, 2008
Date
2
0120082559
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
5
0120082559