0120062269
11-15-2007
Jack Atherton, Complainant, v. Alberto Gonzales, Attorney General, Department of Justice, Agency.
Jack Atherton,
Complainant,
v.
Alberto Gonzales,
Attorney General,
Department of Justice,
Agency.
Appeal No. 01200622691
Agency No. P20030260
DECISION
Complainant filed a timely appeal with this Commission from a final
decision (FAD) by the agency dated January 26, 2006, finding that it was
in compliance with the terms of the June 14, 2004 settlement agreement
into which the parties entered. 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:
(6) The agency agrees to recredit the complainant sixty (60)
hours of annual leave.
(7) The complainant agrees to retire from the federal service during
the calendar year that he is first eligible to retire which would be on
or before December 31, 2005; and
(8) The parties agree that the complainant will remain at the Federal
Correctional Institution at Pekin, Illinois as an Associate Warden until
his retirement, unless he is granted a requested transfer or is promoted.
By letter to the agency dated December 8, 2005, complainant alleged that
the agency was in breach of the settlement agreement, and requested
that the agency specifically implement its terms. Specifically,
complainant alleged that he has been in his present position longer than
another warden or associate warden, and has been denied promotions and
reassignments.
In its January 26, 2006 FAD, the agency concluded that no breach occurred
because the parties did not agree that complainant would be transferred,
promoted or reassigned. Rather, the agreement provided the opposite;
that complainant would remain at the facility until his retirement,
unless he was promoted or transferred.
On appeal, complainant contends that the agency breached the settlement
agreement because he has remained in his position for so long. He also
alleges, for the first time, that the agency failed to credit him annual
leave pursuant to section (6) of 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).
The record reveals that complainant is dissatisfied with the length of
service he has had at his particular facility. However, nothing in the
settlement agreement provides for the agency to transfer, reassign or
promote complainant. Subsequent acts of discrimination that violate a
settlement agreement shall be processed as separate complaints under �
1614.106 or 204, as appropriate, not as breach of settlement allegations.
See 29 C.F.R. � 1614.504(c). Accordingly, if complainant believes he has
been discriminated against because he was denied a transfer, promotion
or reassignment, he needs to contact an EEO Counselor pursuant to 29
C.F.R. �1614.105.
As for his claim that the agency did not fulfill its obligation to
credit complainant's leave, the Commission finds that there is no
indication in the record that complainant brought this breach allegation
to the attention of the EEO Director as provided for in �1614.504(a).
There is no decision from the agency in the record concerning this
breach allegation. Therefore, we find that this allegation concerning
whether the agency breached the agreement is not properly before
us and is dismissed. If complainant wishes to pursue a breach of
settlement allegation, then he should contact the EEO Director pursuant
to �1614.504(a).
CONCLUSION
Accordingly, the agency's final decision is AFFIRMED.
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
11/15/07
Date
1 Due to a new data system, this appeal has been redesignated with the
above referenced appeal number.
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0120062269
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120062269