01A21557_r
04-30-2002
Kenneth E. Lanspa, Complainant, v. Ann M. Veneman, Secretary, Department of Agriculture, Agency.
Kenneth E. Lanspa v. Department of Agriculture
01A21557
April 30, 2002
.
Kenneth E. Lanspa,
Complainant,
v.
Ann M. Veneman,
Secretary,
Department of Agriculture,
Agency.
Appeal No. 01A21557
Agency No. 99-0531
DECISION
Complainant appealed to this Commission, arguing that the agency refused
to enforce a valid settlement agreement the parties entered into April
3, 2001.<1> The agency contends that no agreement existed. On appeal,
complainant argues that the agency official who signed the agreement
told the mediator that he had settlement authority, and that the approval
process necessary to make it effective was a �formality.�
The record includes a copy of the purported settlement agreement, signed
by complainant and an agency official on April 3, 2001. It provides,
in relevant part:
In consideration of complainant's agreement to the terms of this
settlement, the agency . . . agrees that it will:
Submit the required documents . . . within sixty (60) calendar days
after the final signature to this agreement, for issuance of a lump
sum payment to complainant in the amount of $10,000.00.
. . . .
The Complainant and the agency hereby certify and agree:
. . . .
The undersigned Parties wish to comply and be bound by the terms of
this agreement. However, they recognize that the agreement is not
operative until it has been endorsed by a higher-level Agency Official
in accordance with the USDA/Forest Service Settlement Policy. If the
Official approves the settlement agreement as negotiated, the terms
are binding on the Parties as written; to be effective on the date it
is approved. If the Official finds the settlement agreement flawed,
the parties agree to renegotiate to resolve the concern.
Any settlement agreement knowingly and voluntarily agreed to by the
parties, reached at any stage of the complaint process, is binding on both
parties. See 29 C.F.R. � 1614.504(a). 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 parties' intent as
expressed in the contract, not some unexpressed intention, 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 generally has 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).
In the instant case, the agreement itself required the approval
of upper-level management before it became effective. Complainant
acknowledges that the agency's representative told him the agreement
would require further approval. It was never approved, and therefore,
never became effective. The agency representative's belief that his
superiors would approve the agreement is immaterial. The Commission
finds that no binding settlement agreement was entered into. Therefore,
there is no settlement breach to remedy.
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
April 30, 2002
__________________
Date
1Complainant claims to be appealing a
January 2, 2002 final order from the agency. However, neither party
has provided a copy of this final order. The agency submits a file,
including a finding of no discrimination dated August 9, 2001, from an
EEOC Administrative Judge (AJ), identified as Hearing No. 370-A1-X2401.
The agency noted that it took no action in response to the AJ's decision,
and thereby adopted her findings after forty days. On appeal, complainant
never addresses the AJ's decision, nor otherwise mentions the merits of
his complaint. Therefore, the Commission will address only the issue
of settlement breach, not the AJ's findings in Hearing No. 370-A1-X2401.