01A02529_r
07-03-2002
Robert J. Fontaine, Complainant, v. Thomas E. White, Secretary, Department of the Army, Agency.
Robert J. Fontaine v. Department of the Army
01A02529
July 3, 2002
.
Robert J. Fontaine,
Complainant,
v.
Thomas E. White,
Secretary,
Department of the Army,
Agency.
Appeal No. 01A02529
Agency No. HTBEF09809I0820
DECISION
Complainant filed a timely appeal with this Commission from a final agency
decision (FAD) by the agency dated January 13, 2000, finding that it was
in compliance with the terms of a February 11, 1999 settlement agreement.
The February 11, 1999 settlement agreement provided, in pertinent part,
that:
4.a. [The agency agrees] to expeditiously [move] forward with an
endorsement recommending approval [of] any applications submitted by the
complainant between February and May 1999 for Intelligence Community
Assignment Program (ICAP) positions. If the complainant is selected
by a participating agency to fill such a vacant position, he will be
permitted to accept the detail to that position without qualification.
4.b. [The agency agrees] to change the complainant's annual Senior System
Civilian Evaluation Report for the period 1 July 1997 to 30 June 1998
in Part VI by checking the Excellence Over 50% Objectives in lieu of
the block for Excellence 25-50% objectives.
By letter to the agency dated October 29, 1999, complainant alleged
that the agency breached the settlement agreement. Specifically,
complainant claimed that the agency retaliated against him when it
initiated a criminal investigation for placing harassing mail in the
US Postal system; when his security clearance was suspended and he was
removed from his ICAP developmental assignment at the Defense Intelligence
Agency; and when the agency, through the U.S. Attorney Office, obtained
a search warrant for his residence.
In its January 13, 2000 decision, the agency concluded that the
settlement agreement had not been breached. The agency argues that
complainant's allegations are not related in any way with the provisions
of the settlement agreement. Furthermore, the agency asserted that it
complied with the settlement agreement when complainant was selected for
a position in the Defense Intelligence Agency, and the National Ground
Intelligence Center released him for duty.
Complainant presents no contentions on appeal.
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 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 record reveals that complainant alleged that the agency engaged
in reprisal and further discriminatory harassment when his security
clearance was suspended, and the agency obtained a search warrant
for his residence. Pursuant to 29 C.F.R. � 1614.504(c), allegations
that subsequent acts of discrimination violate a settlement agreement
shall be processed as a separate complaint under 29 C.F.R. � 1614.106.
If complainant wishes to pursue such a claim of discrimination, he is
advised to contact an EEO Counselor thereon. Accordingly, the agency's
decision finding no breach was 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
July 3, 2002
__________________
Date