0120092589
08-31-2009
Peter L. Regan, Jr., Complainant, v. Michael W. Wynne, Secretary, Department of the Air Force, Agency.
Peter L. Regan, Jr.,
Complainant,
v.
Michael W. Wynne,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 0120092589
Agency No. 9X1M08033
DECISION
Complainant filed an appeal with this Commission from an agency decision,
dated May 27, 2009, finding that it was in compliance with the terms
of the January 14, 2009 settlement agreement into which the parties
entered. 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:
(c) Should any prospective employers contact Complainant's unit
regarding Complainant, such prospective employers are to be referred to
Lt. Col [S].
. . .
(e) Support Complainant in his efforts to have his contracting
warrant reinstated.
By letter to the agency dated April 22, 2009, complainant alleged breach
of provisions (c) and (e). Regarding (c), complainant stated that a
prospective employer for a Procurement Analyst position was not referred
to the Lt. Colonel, but instead spoke with complainant's supervisor,
Deputy PK. As to receiving "support" for warrant reinstatement, provision
(e), complainant notes that while the Lt. Colonel did forward his name
to ASC/PK for consideration, no other action has been taken.
In its decision, the agency found no breach. Regarding provision (c),
the agency found that complainant himself submitted his supervisor's name
and contact information to the prospective employer. Regarding provision
(e), and referencing a May 12, 2009 memorandum, the agency found that
complainant has been "supported" in his efforts to obtain his contacting
warrant. In the memorandum, the Lt. Colonel describes communications
with the POC for the warrant program, as well as emails inquiring about
"fast tracking" and complainant's attendance at study groups.
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, which 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).
The Commission finds that complainant's allegation that provision (c) was
breached is not supported by the record. Rather, the record contains an
email exchange between the prospective employer and complainant revealing
that complainant himself provided the name of his supervisor when the
prospective employer requested the names and contact numbers of his last
three supervisors. Therefore, we agree with the agency that provision
(c) was not violated.
Next, we turn to provision (e), wherein the agency was obligated to
"support" complainant in his efforts to reinstate his contracting warrant.
Generally, the adequacy or fairness of the consideration in a settlement
agreement is not at issue, as long as some legal detriment is incurred
as part of the bargain. However, when one of the contracting parties
incurs no legal detriment, the settlement agreement will be set aside
for lack of consideration. See MacNair v. U.S. Postal Service, EEOC
Appeal No. 01964653 (July 1, 1997); Juhola v. Department of the Army,
EEOC Appeal No. 01934032 (June 30, 1994) (citing Terracina v. Department
of Health and Human Services, EEOC Request No. 05910888 (March 11, 1992).
In the instant case, we find that the term "support" is too vague to be
enforced. The Commission would be unable to determine whether or not the
agency had complied with such a requirement. The settlement language does
not provide complainant with reinstatement of his contracting warrant.
On appeal, complainant argues that the Lt. Colonel has the authority
to warrant complainant as a member of 88CONS, to which he is assigned.
Complainant argues that because he is not assigned to ASC/PK, where
complainant's name was forwarded, the agency would have nothing to gain
from having him go through the ASC/PK warrant process. If complainant
sought to have the Lt. Colonel authorize his warrant, he should have had
his intentions reduced to writing. Consequently, we find that provision
(e) is unenforceable and void. Since the remainder of the settlement
agreement contains adequate consideration, the Commission finds that
the agreement is hereby reformed without provision (e). 1
CONCLUSION
Accordingly, the agency's decision was proper and is hereby AFFIRMED.
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
August 31, 2009
__________________
Date
1 The agreement also provided complainant with forty hours of annual
leave and $2,000.00 in attorneys' fees.
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0120092589
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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