01a54010
09-13-2005
George W. Panoke, Complainant, v. Dr. Francis J. Harvey, Secretary, Department of the Army, Agency.
George W. Panoke v. Department of the Army
01A54010
09-13-05
.
George W. Panoke,
Complainant,
v.
Dr. Francis J. Harvey,
Secretary,
Department of the Army,
Agency.
Appeal No. 01A54010
Agency No. ARHAWAII04JUN0005
DECISION
Complainant filed an appeal with this Commission for a determination
regarding whether the agency violated the terms of a settlement agreement,
which resolved an EEO complaint filed against the agency. The appeal
is accepted in accordance with 29 C.F.R. �� 1614.401(e) and 405.
The record indicates that, on December 16, 2004, complainant and the
agency entered into a settlement agreement. Complainant agreed to
withdraw his EEO claims against the agency. The agency, among other
things, agreed:
If complainant's security clearance revocation currently under appeal is
overturned, to give complainant a one-time priority consideration for
a Police Officer, GS-083-6, position at the U.S. Army Military Police
Brigade, Hawaii. Complainant must first notify Major [RT], or his
successor if Major [RT] is no longer serving as the Chief of Police,
Military Police Brigade, Fort Shafter, Hawaii, that the revocation of
his security clearance has been overturned based upon his appeal.
In a letter, dated March 9, 2005, complainant, through his attorney,
argued that the settlement agreement was "null and void," because,
unbeknownst to complainant, the decision regarding the appeal of his
security clearance revocation was issued on October 14, 2004, i.e.,
before the settlement agreement was signed.
The agency, in its final decision, argued that �there was neither any
misrepresentation by the [agency] Police nor was there a mutual mistake
by the parties that would require voiding� the settlement agreement.
The agency also maintained that its local representatives in Hawaii
were, like complainant, unaware of the status of complainant's appeal.
According to the agency, the local representatives did not learn of
the decision until January 12, 2005. Even if a mistake had been made,
the agency argued that it was mutual mistake that was not material to
the settlement agreement.
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).
Generally, the adequacy or fairness of consideration is not addressed,
so long as some legal detriment is incurred in exchange for the bargain.
Terracina v. Department of Health and Human Services, EEOC Request
No. 05910888 (March 11, 1992). If one party incurs no legal detriment,
the Commission may render the agreement void for lack of consideration.
Here, the agency incurred no detriment in exchange for complainant's
withdrawal of his EEO claims. As already indicated above, the agency's
Personnel Appeals Board, located in Washington, D.C., had already
issued a decision regarding complainant's appeal of his security
clearance revocation. Therefore, the settlement agreement does not
afford complainant anything in exchange for his promise to withdraw his
complaint. We disagree with the agency's contention that the possibility
that complainant's appeal could have been decided in his favor was not
material to the settlement agreement. Had complainant's appeal been
granted, he would have received priority consideration for a position.
Accordingly, the Commission finds that the settlement agreement is void
for lack of consideration. The agency's decision is REVERSED and we
REMAND the matter for further processing in accordance with this decision
and applicable regulations.
ORDER
The agency is ordered to resume the processing of complainant's settled
EEO claims from the point that processing ceased, pursuant to 29 C.F.R. �
1614.108 et seq. Within 30 calendar days of the date this decision
become final, the agency must notify complainant that it has reinstated
the EEO claims. The agency must provide a copy of this letter to the
Compliance Officer, as referenced herein.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the complainant. If the agency does not comply with the Commission's
order, the complainant may petition the Commission for enforcement
of the order. 29 C.F.R. � 1614.503(a). The complainant also has the
right to file a civil action to enforce compliance with the Commission's
order prior to or following an administrative petition for enforcement.
See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g).
Alternatively, the complainant has the right to file a civil action on
the underlying complaint in accordance with the paragraph below entitled
"Right to File A Civil Action." 29 C.F.R. �� 1614.407 and 1614.408.
A civil action for enforcement or a civil action on the underlying
complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c)
(1994 & Supp. IV 1999). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 29 C.F.R. � 1614.409.
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 (R0900)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court within ninety (90) calendar days from the date
that you receive this decision. 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 (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
____09-13-05______________
Date