01986667_r
11-16-1999
Gary L. Rouse, Complainant, v. Daniel R. Glickman, Secretary, Department of Agriculture, Agency.
Gary L. Rouse, )
Complainant, )
)
v. ) Appeal No. 01986667
) Agency No. 970263
Daniel R. Glickman, )
Secretary, )
Department of Agriculture, )
Agency. )
______________________________)
DECISION
Complainant timely appealed the agency's final decision not to reinstate
his complaint of unlawful employment discrimination that the parties
had settled.<1> See 64 Fed. Reg. 37,644, 37,659-37,660 (1999) (to
be codified and hereinafter referred to as 29 C.F.R. ��1614.402(a),
1614.504); EEOC Order No. 960, as amended.
The record indicates that complainant filed a formal complaint dated
March 12, 1997, concerning leave, a derogatory comment, and a hostile
work environment. On August 25, 1997, the parties entered into a
settlement agreement, which provided, in pertinent part, that:
The agency would provide complainant with a letter of apology from
the employee who made the derogatory remark and from the Director of
International Programs for handling of the derogatory remark incident.
The agency would review circumstances surrounding the derogatory remark
and take appropriate action. The agency would pay complainant $1,000
of his claim for compensatory damages.
By letter dated February 17, 1998, complainant alleged that the agency
breached the settlement agreement. Specifically, complainant indicated
that he had not received the letters of apology; and he was subjected
to a derogatory remark from his supervisor on November 12, 1997.
Complainant also claimed that the agency failed to comply with a �Last
Chance/Abeyance Agreement� of September 3, 1997, in that he did not
receive a position description for his new position; and he was removed
from the agency on January 30, 1998.
In its final decision, the agency stated that although it had obtained
the apology letters at issue after the settlement agreement, it had
not sent them to complainant. The agency indicated that upon receipt
of complainant's noncompliance letter, it sent those letters to him in
February 1998. With regard to complainant's supervisor's remark, the
agency advised complainant to contact an EEO Counselor if he wished to
further pursue the matter.
In addition, the agency noted that the parties entered into the September
3, 1997 agreement concerning its decision to hold the proposed removal
action of December 11, 1996, in abeyance. The agency indicated that
complainant was, subsequently, removed from the agency effective January
30, 1998, because he violated the terms of the subject agreement.
The agency found that the matters concerning the September 3, 1997
agreement did not fall within the purview of the EEOC regulations since
it did not concern an EEO complaint.
On appeal, complainant acknowledges that he received the letters
of apology at issue only after he sent his noncompliance letter to
the agency. Complainant also indicates that he filed subsequent EEO
complaints concerning his supervisor's remark of November 12, 1997,
and harassment by another individual.
EEOC Regulation 29 C.F.R. �1614.504 provides that if the complainant
believes that the agency failed to comply with the terms of a settlement
agreement, the complainant should notify the Director of Equal Employment
Opportunity, in writing, of the alleged noncompliance with the settlement
agreement, within thirty (30) days of when the complainant knew or should
have known of the alleged noncompliance. The complainant may request that
the terms of the settlement agreement be specifically implemented or,
alternatively, that the complaint be reinstated for further processing
from the point processing ceased.
The agency shall resolve the matter and respond to the complainant,
in writing. If the agency has not responded to the complainant, in
writing, 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 final decision.
The Commission has held that settlement agreements are contracts between
the complainant and the agency and it is the intent of the parties
as expressed in the contract, and not some unexpressed intention, that
controls the contract's construction. Eggleston v. Department of Veterans
Affairs, EEOC Request No. 05900795 (August 23, 1990). In addition, the
Commission generally follows the rule that if a 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 v. Building Engineering Services,
730 F.2d 377 (5th Cir. 1984). The Commission has followed this rule
when interpreting settlement agreements. The Commission's policy in
this regard is based on the premise that the face of the agreement best
reflects the understanding of the parties.
Upon review, we find that the agency did not breach the settlement
agreement at issue. The record reveals that after complainant alleged
noncompliance with the settlement agreement, the agency took steps
to cure the alleged breach of the settlement agreement. The record
indicates that the letters of apology at issue were sent to complainant.
On appeal, complainant acknowledges receipt of those letters. We find
that a breach of the settlement agreement occurred, but we also find
that the agency cured the breach. See Covington v. United States Postal
Service, EEOC Appeal No. 01913211 (September 30, 1991).
With regard to complainant contentions that the agency failed to comply
with a Last Chance Agreement of September 3, 1997, we agree with the
agency that this matter is beyond the scope of the EEO settlement
agreement at issue. Complainant is hereby advised to review that
agreement to determine his recourse for any non-compliance. Accordingly,
the agency's decision is hereby AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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
64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. �1614.405). 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 64 Fed. Reg. 37,644, 37,661 (1999)
(to be codified and hereinafter referred to as 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).
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. 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 (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:
November 16, 1999
DATE
Carlton
M.
Hadden,
Acting
Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_________________________
__________________________
1On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
Federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at WWW.EEOC.GOV.