01A23730_r
09-17-2003
Joseph J. Jablonski, Jr., Complainant, v. Robert J. Battista, Chairman, National Labor Relations Board, Agency.
Joseph J. Jablonski, Jr. v. National Labor Relations Board
01A23730
September 17, 2003
.
Joseph J. Jablonski, Jr.,
Complainant,
v.
Robert J. Battista,
Chairman,
National Labor Relations Board,
Agency.
Appeal No. 01A23730
DECISION
Complainant appeals to the Commission from the agency's May 28, 2002
decision finding no breach of a May 3, 1996 settlement agreement.
The settlement agreement provided that complainant would resign from
the agency effective May 3, 1996, and the agency was required in part to
pay complainant $50,000.00 in compensatory damages. Provision eleven,
which is at issue in the instant appeal, provides that, �[Complainant]
agrees not to seek reemployment with the Agency in a career position.�
By letter dated May 1, 2002, complainant informed the agency that it had
breached the settlement agreement. Complainant stated that on January
23, 2002, he forwarded an application to the agency for a position as an
attorney on a career track. Complainant stated that on or about February
10, 2002, he received a response from the agency stating that his job
application would not be processed because he had agreed not to seek
reemployment with the agency in a career position. Complainant noted that
on March 11, 2002, he sent a letter to the General Counsel with regard
to his job application. According to complainant, on or about April
12, 2002, he received a letter from the Special Counsel to the General
Counsel, reiterating the agency's refusal to process his job application
based on the settlement agreement. Complainant stated that it is against
the spirit of the EEO settlement process and the settlement agreement
itself to bar him in perpetuity from reapplying for an attorney position.
Complainant also stated that the agency demanded his immediate resignation
as a settlement term at a very late point in settlement negotiations.
In its May 28, 2002 decision, the agency found no breach of the settlement
agreement. The agency determined that complainant was untimely in raising
his breach claim. The agency stated that complainant has not provided any
basis for having waited six years to challenge the provision regarding
his resignation. The agency stated that the fact that the resignation
date was moved up does not indicate unfair surprise or duress with regard
to this provision. The agency noted that complainant has not referenced
any recent event that has caused him to believe for the first time that
coercion, duress, or misinterpretation occurred when the settlement
agreement was executed.
With respect to the provision concerning reemployment, the agency
determined that complainant's claim of breach was untimely. The agency
noted that complainant waited more than 30 days from when he received
the agency letter dated February 5, 2002, to raise his breach claim with
the EEO Director. The agency also determined that even if complainant's
breach claim is timely, the claim nonetheless lacks merit. The agency
stated that there is no indication that complainant objected to his
immediate resignation at the time the settlement was executed. As for
the provision prohibiting complainant from applying for reemployment, the
agency stated that the provision is plain and unambiguous. The agency
stated that a time limit was not contemplated and that there is no
indication that complainant objected to the provision at the time the
agreement was executed.
On appeal, complainant claims that the bar against employment
re-application does not include the word never and therefore it should
not be considered an absolute bar in perpetuity. Complainant argues
that in the absence of specific language, the provision should be read
to limit his reapplication for employment only for a reasonable period
of time. Complainant claims that his desisting from applying to the
agency for a five year period is more than a reasonable period of time.
With regard to the timeliness of his breach claim, complainant maintains
that he immediately contacted the EEO Office after he received the letter
from the Special Counsel to the General Counsel. As for his immediate
resignation, complainant states that undue pressure was applied by the
agency late in the settlement negotiation process when agency officials
made it clear that they wanted him out of there as soon as possible.
Complainant states that the agency enticed him into negotiations by
telling him that he could remain employed with the agency until he secured
satisfactory employment, and then subsequently demanded his immediate
resignation even though he had not secured satisfactory employment.
In response, the agency asserts that complainant has not acted with due
diligence. The agency argues that complainant has offered no explanation
as to why he has waited six years to challenge the provision addressing
his immediate resignation. The agency further argues that complainant
traded his assent to an immediate resignation for the enhanced benefit
he derived from a higher monetary payment than the agency originally
offered. As for the timeliness of complainant's breach claim concerning
the bar against reapplying for employment, the agency asserts that its
February 10, 2002 rejection of complainant's job application triggered
complainant's obligation to contact the EEO Director and not the April
10, 2002 letter from the Special Counsel. With regard to the merits of
this breach claim, the agency asserts that if complainant wished to limit
the duration of his obligation to refrain from seeking reemployment with
this agency, it was his obligation to ensure that limiting language was
included in the agreement. The agency argues that since this provision is
clear and unambiguous on its face, it should be permitted to retain the
benefit of its bargain and refuse to process complainant's application
for reemployment.
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.
If the complainant believes that the agency has failed to comply with
the terms of a settlement agreement or final action, the complainant
shall notify the EEO Director, in writing, of the alleged noncompliance
within 30 days of when the complainant knew or should have known of the
alleged noncompliance. The complainant may request that the terms of
the agreement be specifically implemented, or, alternatively, that the
complaint be reinstated for further processing from the point processing
ceased.
The Commission has consistently held that settlement agreements are
contracts between the complainant and the agency, and 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, 381 (5th Cir. 1984).
With regard to the timeliness of complainant's claim concerning his
immediate resignation from the agency, we find that this claim has not
been raised in a timely manner. Complainant and the agency executed
the settlement agreement on May 3, 1996. We find that complainant
has not submitted sufficient justification as to why a claim of
coercion, duress, or unfair surprise should be considered six years
after complainant entered into the agreement. As for the prohibition
on complainant applying for reemployment with the agency in a career
position, we will assume arguendo that complainant's claim has been
raised in timely fashion. We find that the settlement agreement is
clear and unambiguous concerning this issue. The agreement explicitly
provided that complainant would not seek reemployment with the agency
in a career position. In light of such clarity and there being no
mention within the settlement agreement of a time limit, we discern no
valid rationale upon which complainant can claim that a time limitation
exists on the prohibition. A settlement agreement made in good faith
and otherwise valid will not be set aside simply because it appears that
one of the parties made a bad bargain. Eggleston, supra.
We find that the agency's determination that it has not breached the
settlement agreement is 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
September 17, 2003
__________________
Date