01A13443_r
10-31-2001
Douglas Bohn, Complainant, v. Gordon R. England, Secretary, Department of the Navy, Agency.
Douglas Bohn v. Department of the Navy
01A13443
October 31, 2001
.
Douglas Bohn,
Complainant,
v.
Gordon R. England,
Secretary,
Department of the Navy,
Agency.
Appeal No. 01A13443
DECISION
Complainant filed a timely appeal with this Commission regarding a
June 15, 2000 settlement agreement between him and the agency. See 29
C.F.R. � 1614.402; 29 C.F.R. � 1614.504(b); and 29 C.F.R. � 1614.405.
Pursuant to the settlement agreement at issue, the agency agreed to:
�Provide Disputant assistance and/or a training class on application
preparation for Merit Promotion Announcements.�
By letter to the agency dated March 7, 2001, complainant alleged that the
agency breached the settlement agreement, and requested that the agency
implement its terms. Specifically, complainant alleged that the agency
failed to respond to his February 28, 2001 request for assistance in
preparing a Merit Promotion application, thereby breaching the agreement
between the parties.
As an initial matter, we address the agency's contention on appeal
that the complainant's appeal in the instant matter is untimely.
EEOC Regulation 29 C.F.R. � 1614.504(b) provides in pertinent part that
if the agency has not responded to complainant in writing, regarding his
allegation of breach of settlement, or if the complainant is not satisfied
with the agency's attempt to resolve the matter, the complainant may
appeal to the Commission for a determination as to whether the agency
has complied with the terms of the settlement agreement or decision.
The regulation further provides that the complainant may file such an
appeal 35 days after he or she has served the agency with the allegations
of non-compliance, but must file an appeal within 30 days of his or
her receipt of an agency's determination. The record indicates that the
agency failed to respond to complainant's March 7, 2001 breach allegation.
Therefore, complainant's April 12, 2001 appeal to this Commission is
timely. On appeal, the agency has submitted a response dated June 15,
2001 to the complainant's allegations of breach.
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, the agreement contains an affirmative agency
obligation to provide complainant with �assistance and/or a training class
on application preparation for Merit Promotion Announcements.� The record
contains a copy of an affidavit from an employee of the agency's Human
Resources Office, attesting that on February 12, 2001, he �created
a draft resume for [complainant].� The employee also avers that on
February 15, 2001, he �assisted [complainant] in writing his resume.� The
evidence of record does not indicate whether the assistance complainant
received in February 2001 was expressly provided in the preparation of
an �application for merit promotion� as referred to in the June 15, 2001
settlement agreement. However, the agreement itself does not specify
the type of assistance required for the agency to be in full compliance,
and a fair reading of the settlement agreement's terms reflect that it
could encompass the resume preparation and assistance identified by the
Human Resources Office. We also note that on appeal, complainant fails
to respond to the agency's specific assertion that by providing him with
this assistance in February 2001, it was in compliance with the terms
of the June 15, 2001 agreement. We find that the complainant has not
provided persuasive evidence that the agency has breached the agreement.
The agency's decision is AFFIRMED for the reasons set forth herein.
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
October 31, 2001
__________________
Date