01A30633_r
09-30-2003
Steven J. Gorg, Complainant, v. Gale A. Norton, Secretary, Department of the Interior, Agency.
Steven J. Gorg v. Department of the Interior
01A30633
September 30, 2003
.
Steven J. Gorg,
Complainant,
v.
Gale A. Norton,
Secretary,
Department of the Interior,
Agency.
Appeal No. 01A30633
Agency No. FWS-02-001R3
DECISION
Complainant timely appealed to this Commission from the agency's October
2, 2002 final determination finding no breach of a May 24, 2002 settlement
agreement into which the parties entered. The settlement agreement
provided, in pertinent part, that:
(3) Complainant will resign effective August 31, 2001. The agency hereby
agrees to provide the complainant with a neutral letter of reference
consisting of his dates of employment, job title, salary upon separation,
that his performance was at an acceptable level of competence, that
he received one monetary award during his employment with the agency,
and he resigned his employment for personal reasons.
By letter to the agency dated September 11, 2002, complainant, through his
attorney, alleged that the agency breached provision (3) of the May 24,
2002 settlement agreement. Specifically, complainant explained that he
negotiated for the August 31, 2001 resignation date in order to render
him eligible for reimbursement of his moving expenses. Complainant
explained that the agency breached the agreement when it refused to pay
for his moving expenses. On appeal, complainant provided evidence that
complainant's attorney informed the agency that complainant required an
August 31, 2001 resignation date because, "it is believed this would allow
[complainant] to have his moving expenses paid."
In its October 2, 2002 final determination, the agency found no breach
of the agreement. Specifically, the agency explained that complainant
resigned effective August 31, 2001, and was provided with a neutral
letter of reference as outlined in the agreement. The agency notes that
the settlement does not require the agency to provide complainant with
moving expenses.
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 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, the final terms of the settlement agreement make no
reference to the payment of moving expenses. If complainant wished to
have the agency cover these expenses, then he should have negotiated to
have them specifically written into the settlement agreement. The agency
complied with provision (3) as written in the final settlement agreement.
Complainant's reason for having an August 31, 2001 resignation date
does not project any added responsibility on the agency beyond the plain
terms of the agreement.
CONCLUSION
Accordingly, the agency's final determination is 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
September 30, 2003
__________________
Date