01A42137_r
07-26-2004
LeConte M. Davis, Complainant, v. Tommy G. Thompson, Secretary, Department of Health and Human Services, Agency.
LeConte M. Davis v. Department of Health and Human Services
01A42137
July 26, 2004
.
LeConte M. Davis,
Complainant,
v.
Tommy G. Thompson,
Secretary,
Department of Health and Human Services,
Agency.
Appeal No. 01A42137
Agency No. 020011
DECISION
Complainant filed an appeal with this Commission alleging breach of the
December 2, 2002 settlement agreement into which the parties entered.
The settlement agreement provided, in pertinent part, that:
(1) This agreement is not intended and shall not affect any rights
that complainant may have to benefits of any kind awarded by the
Office of Worker[s'] Compensation Programs [OWCP] of the United States
Department of Labor. The Agency shall not take any action that has the
purpose or effect of interfering with, or abridging, any such rights.
Notwithstanding the above, nothing in this agreement in any way
prohibits the agency from complying with any requests for documents
or other information received from the Department of Labor regarding
complainant's OWCP claim.
Complainant agrees to refer any potential employers to [M1], Chief,
NCI Human Resource Operations, NIH. When called for a reference,
[M1] will verify complainant's employment with the Agency and confirm
the following information: (a) complainant's entry on duty date with
the agency, (b) complainant's official position title and salary. [M1]
will provide no other information.
By electronic mail message to the agency dated January 22, 2004,
complainant alleged that the agency was in breach of the settlement
agreement. Complainant alleged that the agency had failed to reimburse
him for various monetary amounts including reimbursement for attorney's
fees, wages for extra duties, and contributions to his accounts in the
Federal Employees Retirement System (FERS) and Thrift Savings Plan (TSP).
In its February 9, 2004 decision, the agency concluded that the agency
had fully implemented the settlement agreement. The agency found that
complainant had filed an OWCP claim, that the agency had provided
documents and responses to requests from the Department of Labor
pertaining to complainant's claim. Further, the agency found that no
one had contacted the agency official (M1) responsible for providing a
neutral reference on complainant's behalf from the settlement date until
the time M1 left the position specified in the settlement agreement.
The agency concluded that the agreement did not provide complainant with
any monetary settlement.
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).
In the instant case, we find the evidence supports the agency's
determination that no breach of the settlement agreement occurred.
The settlement agreement does not provide the monetary reimbursements
complainant states he is due under the settlement agreement.
Accordingly, we AFFIRM the agency's determination that no breach of the
settlement agreement occurred.
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
July 26, 2004
__________________
Date