01A21826_r
06-07-2002
Edward D. Asmuth, Complainant, v. Paul H. O'Neill, Secretary, Department of the Treasury, Agency.
Edward D. Asmuth v. Department of the Treasury
01A21826
June 7, 2002
.
Edward D. Asmuth,
Complainant,
v.
Paul H. O'Neill,
Secretary,
Department of the Treasury,
Agency.
Appeal No. 01A21826
Agency No. 00-3169B
DECISION
Complainant filed a timely appeal with this Commission from a final
decision (FAD) by the agency dated January 14, 2002, finding that it was
in compliance with the terms of a August 23, 2000 settlement agreement.
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:
(1b) The agency will terminate the temporary assignment of Personnel
Management Specialist, GS-201-12/13, announced under vacancy announcement
#99-E2-380 at the end of the one-year appointment or before;
The parties agree that the facts of this settlement agreement and all
terms contained therein shall not be publicized in any manner except as
is necessary for the parties to carry out the terms of the agreement.
By letter to the agency dated March 29, 2000, complainant alleged that
the agency breached provisions (1b) and (4) of the settlement agreement,
and requested that the agency reinstate his underlying complaint.
Specifically, complainant alleged that the agency breached provision
(1b) when it failed to return the two individuals selected under vacancy
announcement number 99-E2-380 to their permanent positions at the end of
their one-year appointments.<1> Moreover, complainant asserted that
he was informed that the two appointments were going to be terminated
by October 1, 2000. Complainant also claimed that the agency breached
provision (4) by providing details of the settlement agreement to
the individuals selected under the vacancy announcement identified in
provision (1b).
In its January 14, 2002 final decision, the agency concluded that it did
not breach the agreement. The agency determined that it complied with
provision (1b) by terminating the temporary promotions under vacancy
announcement #99-E2-380 within one year of the effective date of the
appointments. The agency further determined that it did not breach
provision (4) because the agency did not provide information about
the settlement agreement to any individuals selected under the vacancy
announcement.
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).
Regarding provision (1b), the record reveals that March 12, 2000, and
March 26, 2000 were the effective dates of the temporary appointments
under vacancy announcement #99-E2-380. The record further reveals
that both appointments were terminated by the agency on March 11, 2001,
which is less than one year after their initiation. While complainant
contends that he was informed in August 2000 that the appointments would
be terminated by October 1, 2000, the terms of the settlement agreement
do not reflect such an intention by the parties. Instead, the agreement
expressly states that the agency has up to one year after the appointments
to terminate the temporary positions. Consequently, we determine that
the agency complied with provision (1b) of the settlement agreement.
Regarding provision (4), complainant contends that the agency breached
this provision by providing the terms of the agreement to the individuals
selected under vacancy announcement #99-E2-380. The record contains two
affidavits by the individuals selected for the temporary appointment
identified in provision (1b). The Commission notes that in both
affidavits, the selected individuals state that they �began hearing
rumors� that they could not keep their temporary promotion, but that the
information �was nothing concrete from the IRS rumor mill.� Moreover,
both individuals asserted in their statements that �no one however told
me exactly what was contained in the settlement agreement, nor did anyone
ever give me a copy of the agreement.� We further note that complainant
failed to offer any evidence regarding how or when the agency divulged
the existence and terms of the settlement agreement. We have held
that the complainant alleging a breach of an agreement has the burden
of demonstrating noncompliance by the agency. See Moore v. Department
of the Navy, EEOC Request No. 05930694 (April 7, 1994). Therefore, in
light of the uncertainty over the origin and content of the information
divulged within the agency �rumor mill,� the Commission finds that
complainant failed to meet his burden of proving the agency breached
the settlement agreement.
Accordingly, the Commission AFFIRMS the agency's finding of no breach.
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
June 7, 2002
__________________
Date
1The record reflects that one employee's one-year appointment was
to expire on March 26, 2001; and that the other employee's one-year
appointment was to expire on March 12, 2001.