0120083227
12-11-2008
Michael Sylvester, Complainant, v. Michael w. Wynne, Secretary, Department of the Air Force, Agency.
Michael Sylvester,
Complainant,
v.
Michael w. Wynne,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 0120083227
Agency No. 9R1M06108T
DECISION
Complainant filed a timely appeal with this Commission from a final
decision (FAD) by the agency dated June 20, 2008, finding that it
was in compliance with the terms of the February 12, 2007 settlement
agreement into which the parties entered. See 29 C.F.R � 1614.504(b);
and 29 C.F.R. � 1614.405.
The settlement agreement provided, in pertinent part, that:
(I) In exchange for the promises of the complainant in this agreement,
the agency
will change item 9 in [complainant's] 2005 to 2006 performance evaluation
from a "4" to an [sic] "9" giving him a total score of 80. Action to
effect this change will be initiated within thirty (30) calendar days
of the signing of this agreement.
By letter to the agency dated May 22, 2008, complainant alleged that
the agency was in breach of the settlement agreement, and requested that
the agency specifically implement its terms. Specifically, complainant
alleged that the agency failed to initiate the change to his performance
evaluation as provided for in the settlement agreement.
In its June 20, 2008 FAD, the agency concluded that it had complied with
the provisions of the February 12, 2007 settlement agreement entered
into by the parties. Specifically, the agency indicates that when the
agreement was signed, complainant no longer worked for the agency having
been removed from his employment due to other unrelated circumstances.
The agency indicates further that following arbitration, complainant was
returned to work on November 9, 2007at which time the agency admits, it
failed to update complainant's performance evaluation as agreed. However,
the agency cured its breach of the agreement on June 11, 2008, when
complainant's performance was updated appropriately and in turn signed
by complainant on June 13, 2008. On appeal, complainant does not dispute
that the agency in fact updated his performance evaluation in accordance
with the agreement. Complainant argues, however, that the agency failed
to do so within 30 days as required by the agreement. Complainant alleges
further that the agency only accomplished its obligations under the
agreement after he notified the agency of his breach claim.
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 had 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 that the agency has complied with the February
12, 2007 settlement agreement. According to the settlement, the agency
agreed to change item 9 in complainant's 2005-2006 performance evaluation
from a "4" to a "9" giving him a total score of 80, within 30 days of
signing the agreement. Although the record indicates that the agency
failed to accomplish its obligation within 30 days, the Commission had
determined that to the extent the agency breached the agreement by not
performing its obligation in a timely manner, the agency cured such breach
by specifically updating complainant's performance evaluation on June
11, 2008. Previous Commission decisions have indicated that failure to
satisfy a time frame specified in a settlement agreement does not prevent
a finding of compliance. See Lazarte v. Department of the Interior, EEOC
Appeal No. 01954274 (April 25, 1996). The Commission also notes that
the record contains no evidence of bad faith on the part of the agency.
In that regard, we find that the agency has substantially complied with
the agreement. Accordingly, the agency's decision finding no breach is
affirmed for the reasons set forth herein.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 77960,
Washington, DC 20013. 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 (S0408)
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 (Z1008)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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
December 11, 2008
__________________
Date
2
0120083368
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
4
0120083227