01992723_r
06-15-1999
Dennis D. Ryan, Appellant, v. Louis Caldera, Secretary, Department of the Army, Agency.
Dennis D. Ryan, )
Appellant, )
)
v. ) Appeal No. 01992723
) Agency No. 82-07-0537
Louis Caldera, )
Secretary, )
Department of the Army, )
Agency. )
______________________________)
DECISION
On July 17, 1998, appellant filed a timely appeal with this Commission
from a final decision (FAD) by the agency dated June 17, 1998,
finding that it was in compliance with the terms of the September 21,
1994 settlement agreement into which the parties entered. See 29
C.F.R. ��1614.402, .504(b); EEOC Order No. 960, as amended.
The settlement agreement provided, in pertinent part, that:
(3) The Parties agree that [appellant] will accept voluntary assignment to
the position of Engineering Technician, GS-802-9, Step 10, in the Business
Management Department, Estimating Division, DPW. The [agency] agrees
to noncompetitively place [appellant] in the next available GS-802-11,
Engineering Technician position in the Business Management Department,
Estimating Division, DPW. The Parties agree to implement these provisions
within sixty (60) days of full execution of this agreement.
(6) The fact of this negotiated settlement and all terms contained
herein shall be kept confidential and not be discussed, nor shall the
fact or the terms of this settlement be disclosed, with anyone including
[agency] employees. [] If [appellant] violates any of the terms of
this provision, it is clearly understood by [him] that [the agency]
shall no longer be bound by the terms of this settlement.
By letter to the agency dated March 12, 1997, appellant alleged that the
agency was in breach of the settlement agreement, and requested that
the agency specifically implement the terms. Specifically, appellant
alleged that when the agency promoted him to the GS-802-11, Engineering
Technician position, it provided him with only a Step 5 within that grade
level instead of a Step 10, which appellant asserted was due him under the
agreement. Additionally, appellant alleged that the agency breached the
confidentiality provision of the agreement when on September 26, 1995, on
a training assignment sheet, appellant's grade level (then a GS-802-09),
along with those of the other employees on the list, was disclosed.
In its June 17, 1998 FAD, the agency concluded that the face of the
agreement was silent with respect to the step at which appellant would
enter upon his promotion to the GS-11 grade level. As appellant was
promoted to the GS-802-11, Engineering Technician position as contemplated
by the agreement, the agency determined that it was in compliance.
The agency further concluded that because appellant's allegation
concerning the confidentiality provision of the agreement (paragraph
6) lacked a specific reference to a conversation or an affidavit from
a fellow employee, there existed no substance on which to warrant a
finding of noncompliance.
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 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 concur with the agency's determination that
it was in compliance with the settlement agreement. The face of the
agreement was silent with respect to the step appellant was to have upon
his placement in the GS-11 Engineering Technician position. Consequently,
as it is undisputed that appellant was placed in the position and grade
identified in the settlement agreement, we find that the agency was not
in breach.
Additionally, we find that the agency did not breach the confidentiality
provision of the settlement agreement. Appellant's concerns stemmed
from the agency's inclusion of his, as well as other employee's wage
grades on a list of persons scheduled to attend a training course.
The record discloses that no reference was made to the EEO settlement
on the training list, and appellant was not singled out for inclusion of
his wage grade. Moreover, taking appellant's allegations to its logical
conclusion, the agency would be unable to include his wage grade on his
pay stub or salary statements. We find that this was not the purpose
of that provision of the settlement agreement. As there is no evidence
that the agency disclosed that appellant received his grade and position
as a result of an EEO settlement, we find that there was no breach of
confidentiality provision of the settlement agreement.
Accordingly, the agency's decision finding that it was in compliance with
the settlement agreement is AFFIRMED for the reasons set forth herein.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. In the alternative, you may file a
civil action AFTER ONE HUNDRED AND EIGHTY (180) CALENDAR DAYS of the date
you filed your complaint with the agency, or filed your appeal with the
Commission. 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. Filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1092)
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:
June 15, 1999
____________________________
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations