01A20403_r
06-27-2002
John D. Horton, Complainant, v. Dr. James G. Roche, Secretary, Department of the Air Force, Agency.
John D. Horton v. Department of the Air Force
01A20403
June 27, 2002
.
John D. Horton,
Complainant,
v.
Dr. James G. Roche,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 01A20403
Agency No. AL900020109
DECISION
On September 24, 2001, complainant filed an appeal with this Commission
for a determination concerning a September 13, 2000 settlement agreement.
Accordingly, the appeal is accepted. 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:
(a) The complainant will submit a Letter of Resignation for personal
reasons to be effective 22 March 2000. The Letter of Termination
dated 15 March 2000 will be removed and all records pertaining to the
termination will reflect the same.
(b) The agency will provide Letters of Recommendation to complainant
from LtCol "A" and LtCol "B" similar in nature to the interviews they
provided to the EEO Counselor dated 12 April 2000 and 14 April 2000.
As an initial matter, we note that rather than raising a breach claim
with the agency, complainant wrote to the Commission's District Office
in Charlotte, North Carolina. The District Office informed complainant
that he should direct his concerns to the Office of Federal Operations,
which he did. Because the agency has provided complainant's file, as
well as a response to his allegations of breach, the Commission will
address the matter based on the record before us.
In his September 23, 2001 letter to the District Office, complainant
alleged that the agency breached the settlement agreement when on August
23, 2001, the Military Police of Shaw informed the Military Police
of Pope Air Force Base that he had been terminated from his position
and had received a "bar and ban" letter. According to complainant,
the settlement agreement required the agency not to make any derogatory
statements through any of its employees. Further, complainant claims that
the Military Police at Pope Air Force Base shared the information with
the Military Police at Fort Bragg, where it was given to complainant's
supervisors. Thereafter, complainant was terminated from his GS-1410-9
Librarian position at the Main Post Library at Fort Bragg.
In response, the agency asserts that in August 1999, complainant was
hired as a probationary employee in the Medical Library Technician
position at the Shaw Air Force Base. On March 15, 2000, complainant was
given a Notice of Termination, with a March 22, 2000 effective date.
Five days later, on March 20, 2000 complainant was issued a letter
("barment letter") restricting his access to the base, due to his
disruptive behavior. Thereafter, complainant entered the settlement
agreement with the agency. The agency argues that complainant failed
to provide any evidence indicating that it released the barment letter
to Pope AFB. Moreover, the agency claims that since the barment letter
does not pertain to complainant's termination, the agreement did not
prohibit the agency from releasing it. Further, the agency notes that
the barment letter was never raised during the settlement negotiations.
Finally, the agency asserts that complainant's subsequent removal from his
position at Fort Bragg was due to his own misconduct and not the release
of any derogatory information relating to his employment at Shaw AFB.
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).
As noted above, complainant claims that the agency breached the agreement
by providing "derogatory information", i.e., his termination from
Shaw Air Force Base and receipt of a 'bar and ban' letter, to another
military facility. He contends that the information subsequently
reached his supervisor and resulted in his termination from Fort Bragg.
We find that the written settlement agreement is plain and unambiguous
on its face. Therefore, the Commission does not look to any extrinsic
evidence to determine any of its terms. A review of the settlement
agreement language indicates that the agency was only required to remove
the Letter of Termination and provide complainant with Letters of
Recommendations from two identified Lieutenant Colonels. The agency
has provided documentation showing that these actions were taken.
Specifically, the record contains a "Notification of Personnel Action"
form cancelling the termination, with a notation stating "Cancels 385
action due to EEO settlement. Action not to be placed in employee's
record." The record also includes letters of recommendation from each
of the individuals named in the agreement. Therefore, we find that the
agency is in compliance with the settlement terms. To the extent that
complainant interpreted the settlement agreement to prohibit the agency
from disseminating information regarding his March 20, 2000 barment
letter, such interpretation should have been reduced to a writing as part
of the agreement. See Jenkins-Nye v. General Services Administration,
EEOC Appeal No. 01951903 (March 4, 1987).
Accordingly, the agency's determination that no breach occurred was
proper and is hereby 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
June 27, 2002
__________________
Date