0120081773
08-05-2008
Franklin A. Schad, Complainant, v. Tom Kilgore, President and Chief Executive Officer, Tennessee Valley Authority, Agency.
Franklin A. Schad,
Complainant,
v.
Tom Kilgore,
President and Chief Executive Officer,
Tennessee Valley Authority,
Agency.
Appeal No. 0120081773
Agency No. 0126-2005026
DECISION
Complainant filed a timely appeal with this Commission from a final agency
decision dated January 25, 2008, finding that it was in compliance with
the terms of the January 26, 2006 settlement agreement into which the
parties entered. See 29 C.F.R. �� 1614.402; .405; & .504(b).
The settlement agreement provided, in pertinent part:
(2) [I]f the complainant has no reoccurring discipline, the January 7,
2005[] Warning Letter will be removed from his [personal history record]
October 21, 2007.
By letter to the agency dated November 16, 2007, complainant alleged that
the agency was in breach of the settlement agreement, and requested that
the agency reinstate the underlying complaint for further processing.
Specifically, complainant stated that the agency Operations Manager (S1)
and its Human Resources Consultant (S2) did not know if the January 7
warning letter was removed from his personal history record (PHR).
In its January 25, 2008 final decision, the agency concluded that it
substantially complied with the January 2006 settlement agreement.
It stated that, on November 19, 2007, it entered into a settlement
agreement with complainant regarding another complaint; at which
time, complainant was aware of the instant alleged noncompliance and
agreed to release the agency from any actions he was or should have
been aware. Further, alternatively, the agency stated any potential
breach was harmless and cured within 35 days after complainant filed
his noncompliance allegation. Specifically, the agency stated, on
December 5, 2007, S2 did not find the warning letter in complainant's
PHR. The agency denied complainant's request for reinstatement of the
underlying complaint. The record contains a declaration from S2, stating
that she reviewed complainant's PHR on December 5, 2007 and the January
5 warning letter was not there. The record also contains a December 5,
2007 memo from the Equal Opportunity Compliance Manager indicating that
the warning letter may have been lost during a personnel system computer
crash and S2 asked complainant's supervisor to remove the warning from
his field file and destroy it.
Complainant filed the instant appeal. On appeal, complainant stated that
the written warning should have been removed from his PHR by October 26,
2007 so, on October 30, he asked S1 to confirm such removal. Complainant
stated that S1 checked into the matter, and stated that neither he nor
S2 were aware of any document removal from his file.
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 response to the agency dismissal based on the subsequent settlement
agreement, we find that complainant informed the agency of his breach
allegation within 30 days of when he became aware, as is required by 29
C.F.R. � 1614.504(a). Next, as to whether the agency is noncompliant,
we are persuaded that the agency resolved the issue and responded to
complainant in accordance with 29 C.F.R. � 1614.504(b). Consequently,
we find, to the extent there was a delay in the warning removal from
PHR and that delay represents a breach, the agency is in substantial
compliance with the settlement agreement and any breach has been cured.
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 5, 2008
__________________
Date
2
0120081773
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
4
0120081773