01a53006
07-20-2005
Harry M. Schmitt, Complainant, v. Gordon R. England, Secretary, Department of the Navy, Agency.
Harry M. Schmitt v. Department of the Navy
01A53006
July 20, 2005
.
Harry M. Schmitt,
Complainant,
v.
Gordon R. England,
Secretary,
Department of the Navy,
Agency.
Appeal No. 01A53006
Agency No. 02-62841-001 and 02-62841-002
DECISION
Complainant filed an appeal on March 21, 2005, with this Commission from
a final decision by the agency dated December 13, 2004, finding that
it was in compliance with the terms of the December 12, 2003 settlement
agreement into which the parties entered.
The settlement agreement provided, in pertinent part, that:
A. The agency will do the following:
1. The agency will pay the complainant the sum of Five Thousand dollars
($5,000.00) in a check made payable to the complainant in waiver of
all damages and costs. The agency makes no representations regarding
the tax consequences of this payment to the complainant.
2. Pay attorney's fees to the appellant's attorney . . . in the amount
of Five Thousand Dollars ($5,000.00).
By letter to the agency dated December 10, 2004, complainant alleged
that the agency was in breach of the settlement agreement, and requested
that the agency specifically reinstate his previously settled complaints.
Complainant alleged that the agency failed to pay him $5,000 as agreed.
In its December 13, 2004 decision, the agency concluded that complainant's
attorney had been paid as agreed, and that the agency had requested
complainant's mailing address from complainant's attorney by electronic
mail message. Complainant's attorney, the agency found, provided a
mailing address for complainant, and the agency directed that a check (in
the amount of $5,000.00) be sent to complainant's address in January 2004.
Accordingly, the agency found that no breach of the settlement agreement
occurred.
On appeal, the agency argues that complainant's notice of breach was
untimely, being received nearly a year after the execution of the
settlement agreement and eleven months after the agency had mailed the
checks in satisfaction of the agreement to complainant and his attorney.
The agency further argues that complainant's appeal is untimely in that
complainant failed to file his appeal within 30 days of the agency's
letter of determination of December 13, 2004.
On appeal, complainant states that he waited a reasonable time to receive
the agency's payment, that he informed the agency of his new address,
and that he is entitled to reinstatement of his complaints as requested.
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).
As a preliminary matter, we note that nothing in the record confirms
complainant's attorney's receipt of the agency's December 13, 2004
determination letter, nor complainant's receipt of payment of the
settlement monies in January 2004. Therefore, we do not find the
appeal or the breach claim untimely. There is no evidence showing that
complainant actually received the $5,000 payment due him under provision
A(1) of the settlement agreement. It appears that the agency, in good
faith, attempted such payment. Under the circumstances, we find that
complainant is still entitled to payment of the settlement monies as
agreed in provision A(1).
We find the agency properly requested that complainant complete the forms
necessary to replace the check that the agency claims to have issued
but complainant claims to not have received. We concur with the agency
that complainant is obliged to cooperate with the agency in fulfillment
of the terms of the settlement agreement. Accordingly, we will direct
the agency to provide the necessary forms again to complainant, so that
the agency may fulfill its obligations under the terms of the settlement
agreement. If complainant fails to return the forms (which the agency
states are required before the Department of Treasury can reissue the
check), within 30 days of receipt of such forms, then the agency is
not obligated to pay complainant the $5,000 due under provision A(1)
of the settlement agreement. Complainant is reminded of his obligation
to act in good faith when implementing the agreement.
We therefore VACATE the agency's determination that no breach of the
settlement agreement of December 12, 2003 has occurred. We REMAND the
matter to the agency for further action as directed herein.
ORDER
The agency shall take the following actions in order to show that the
agency has complied with provision (A)(1) of the settlement agreement
of December 12, 2003:
The agency shall place into the record documentation verifying whether
complainant has received the $5,000 at issue in provision A(1) of the
settlement agreement. If complainant has not received the $5,000,
then the agency shall place documents in the record indicating that the
agency has verified complainant's mailing address and evidence showing
that the agency has mailed (and proof that complainant has received)
the forms necessary to re-issue a check to complainant in satisfaction of
the agency's obligation under provision A(1) of the settlement agreement.
If the agency finds it necessary to re-issue a check, then the agency
shall send a letter to complainant providing him with instructions to
return the completed forms to the agency within 30 days of his receipt
of the forms and requesting complainant's cooperation therein.
Within 120 days of the date this decision becomes final the agency shall
issue a new decision determining whether the agency breached provision
(A)(1) of the settlement agreement. A copy of the agency's new decision
must be sent to the Compliance Officer 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
July 20, 2005
__________________
Date