01990500_r
12-14-1999
James D. Stewart, Complainant, v. Daniel R. Glickman, Secretary, Department of Agriculture, Agency.
James D. Stewart, )
Complainant, )
)
v. ) Appeal No. 01990500
) Agency No. 980895
Daniel R. Glickman, )
Secretary, )
Department of Agriculture, )
Agency. )
____________________________________)
DECISION
On October 9, 1998, after failing to receive a response from the
agency regarding his claim of breach of a June 17, 1998 settlement
agreement, complainant filed an appeal with this Commission for a
compliance determination.<1> See 64 Fed. Reg. 37,644, 37,659, 37,660
(1999)(to be codified and hereinafter referred to as EEOC Regulations
29 C.F.R. ��1614.402, .504(b)); EEOC Order No. 960, as amended.
The settlement agreement provided, in pertinent part, that the agency
agreed to:
(4) Approve [complainant's] requests for six (6) training classes over
the thirty-six (36) months immediately following the execution of this
agreement, in accordance with applicable law and regulations.
(6) Take necessary steps to ensure that [complainant] is treated equitably
and that he is free from unlawful discrimination, harassment, or reprisal
actions in the workplace.
By letter to the agency dated August 11, 1998, complainant alleged
that the agency was in breach of the settlement agreement, and
requested guidance as to his options to specifically implement the
terms of the agreement, or, as later requested in his appeal to the
Commission, to reinstate contact with an EEO counselor at the point
it was terminated in the informal complaint process. Specifically,
complainant alleged in his claim of breach that the agency failed to
�live up� to item number (6) in the agreement, and attached a detailed
complaint �outlining a systematic process of reprisal and fostering of
a hostile work environment� by the �individual against whom I lodged my
original complaint.� In his appeal to the Commission and in a subsequent
November 23, 1998 letter to the agency, complainant also alleged that
the agency failed to implement the training provisions of item (4)
of the settlement agreement, and that the EEO Counselor was responsible
for certain improprieties that affected the settlement. With respect to
item (4) of the agreement, complainant asserted that he had submitted a
training plan, but had received no response. Regarding the EEO Counselor
allegations, complainant maintained that the EEO Counselor made comments
that prejudiced the settlement and tainted management's view of the
complaint, misrepresented what issues could be resolved by settlement,
and that he was pressured to withdraw his request for anonymity and
confidentiality - which were later violated in the counseling process.
Specifically, complainant in effect asserts that the settlement should
be voided because the EEO Counselor made comments that prejudiced the
settlement, including that the complaint looked like revenge, and
that several of the agency's actions were within supervisory authority.
Complainant also contends that he was pressured to withdraw his request
for anonymity and confidentiality, which he asserts were violated by
the EEO Counselor, and that the EEO Counselor misrepresented what issues
were timely and could be resolved at settlement.
Although, as noted above, complainant had already filed an appeal with the
Commission, on November 5, 1998 the agency issued a final decision (FAD)
in reply to complainant's initial August 11, 1998 claims of reprisal. The
agency's decision stated that, according to EEOC Regulations and guidance,
claims that subsequent acts of discrimination and reprisal violate a
settlement agreement shall be processed as separate complaints rather
than a complaint of noncompliance. Consequently, the FAD found that
any alleged incidents of reprisal occurring after the signing of the
settlement were new issues that must be pursued through a new complaint.
On March 24, 1999, the agency also acknowledged complainant's claim of
breach of item (4), and in a May 18, 1999 letter to complainant, asserted
agency compliance with all of the terms of the settlement agreement.
Enclosed with the May 18 assertion of compliance, was an April 12, 1999
letter from the complainant to the agency's Regional Director discussing
the six training courses referenced in item (4) of the settlement.
Complainant's letter submitted five classes for agency approval, stating
he could not find a sixth class that met his needs, but that he would
forward a request for approval if he could find an additional class.
The signature of the agency's Regional Director indicated approval
of complainant's requested courses as of the April 12, 1999 date of
the letter.
Volume 64 Fed. Reg. 37,644, 37,656 (1999)(to be codified and hereinafter
referred to as 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 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).
EEOC Regulation 29 C.F.R. �1614.504(a) provides that if a complainant
believes that the agency has failed to comply with the terms of a
settlement agreement, he may request that the terms of the agreement
be specifically implemented, or, alternatively, that the complaint be
reinstated for further processing. However, the Commission has held
that a complaint which alleges reprisal or further discrimination in
violation of a settlement agreement's "no reprisal" clause, is to be
processed as a separate complaint and not as a breach of settlement.
Bindal v. Department of Veterans Affairs, EEOC Request No. 05900225
(August 9, 1990); 29 C.F.R. �1614.504(c).
In the instant case, we concur with the agency's determination that it was
in compliance with the settlement agreement. First, we find that item (6)
in the settlement agreement clearly constitutes a �no reprisal clause� as
contemplated by EEOC precedent. As such, any alleged violation of this
provision must be processed as a separate complaint of discrimination
rather than as a breach of settlement. Complainant is therefore advised
to seek counseling concerning any incidents that he feels are retaliatory
in nature.<2>
With respect to complainant's claim that the agency failed to provide
training classes as stated in item (4) of the agreement, we also find that
the agency has not breached the settlement. The June 17, 1998 settlement
called for the agency to �[a]pprove Employee's requests for six (6)
training classes over the thirty-six (36) months immediately following the
execution of this agreement.� The record indicates that complainant's
April 12, 1999 request for five training courses was immediately approved,
and it provides no evidence that he has requested approval of a sixth
course. In any event, the agency has the entire thirty-six-month time
frame provided in the agreement to meet its obligations, a time frame
not ending until June 17, 2001. The agency is therefore in compliance
with item (4) of the settlement.
Finally, we find that complainant's claims of impropriety on the
part of the EEO Counselor do not rise to the level necessary to void
the settlement agreement. As noted above, a settlement agreement
between an EEO complainant and a federal agency is a contract subject
to ordinary principles of contract interpretation and construction.
Thus, a settlement agreement may be voidable in some circumstances
if a complainant can show that there was coercion, misrepresentation
or mistake in the making of the agreement. Terracina v. Department of
Health and Human Services, EEOC Request No. 05910888 (March 11, 1992).
Despite complainant's claims, however, he has not submitted any evidence
to establish that the EEO Counselor or agency either coerced him into
signing the settlement agreement or committed any other unlawful action so
that he would sign the agreement. Moreover, he offers no evidence that
the EEO Counselor intentionally or unintentionally misrepresented facts
or information to him; or that the parties entered into the agreement
based on a mutual mistake of a material fact. Therefore, we find that
complainant failed to demonstrate that any coercion, misrepresentation,
or mistake occurred. In the absence of such evidence, the Commission
finds no basis to deem the agreement null and void.
Accordingly, the agency's decision finding that it was in compliance with
the settlement agreement is AFFIRMED for the reasons set forth above.
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).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S1199)
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:
December 14, 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:
_______________ __________________________
Date Equal Employment Assistant 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.
2We note that complainant stated in his November 23, 1998 letter to the
agency that he had indeed filed a separate reprisal complaint concerning
the instant issues, �as suggested� in the agency's November 5, 1998 FAD.