0120121407
07-09-2012
William E. Jordan, Complainant, v. Mike Donley, Secretary, Department of the Air Force, Agency.
William E. Jordan,
Complainant,
v.
Mike Donley,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 0120121407
Agency No. 6Z1M11012
DECISION
Complainant filed a timely appeal with this Commission from a final decision (FAD) by the Agency dated November 10, 2011, finding that it was in compliance with the terms of the 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Parachute Test Systems Mechanic at the Agency's facility at Edwards, Air Force Base, California. Believing that the Agency subjected him to unlawful discrimination, Complainant contacted an Agency EEO Counselor to initiate the EEO complaint process. On September 20, 2011, Complainant and the Agency entered into a settlement agreement to resolve the matter. The settlement agreement provided, in pertinent part, that:
(a) That [named individual], MXS/CL will review, [Complainant's] resume and career brief for accuracy within thirty (30) days of the singing of this agreement;
(b) The Agency will temporarily detail [Complainant] to the QA Augmentee Program, not to exceed 120 days, within six (6) months of the singing of this agreement;
(c) [Complainant] will be assigned the ETMS supervisory training bundle within one (1) week of the signing of this agreement;
(d) The Agency will pay [Complainant] the lump sum of three hundred dollars ($300.00). No deductions will be taken from this amount and [Complainant] recognizes he will be responsible for any applicable taxes on this payment.
(e) Both parties agree to keep the terms of this Settlement Agreement confidential and neither party will discuss the terms of the Agreement with anyone other than those with a need to know in the performance of their duties.
By letter to the Agency dated October 20, 2011, 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 comply with provision (c), regarding the assignment to the ETMS supervisory training bundle and provision (d), concerning the payment of $300.00
In its November 10, 2011 FAD, the Agency concluded that it had not breached any provision of the Agreement. Specifically, the Agency indicates that on September 22, 2011, Complainant was assigned to the ETMS Supervisory bundle as provided in the settlement agreement. The Agency further indicates that Complainant was sent an email confirming his assignment. The record further indicates that the Agency's Resources Division submitted a request for payment of $300.00 to Complainant two days after the settlement agreement was executed. However, Agency officials were not aware that Complainant had not received payment until his notice of breach on October 20, 2011. Following an inquiry into the matter, it was discovered that in order to process Complainant's payment, additional documentation was required. Finally, the Agency indicates that once the requirement documentation was submitted on October 24, 2011, Complainant received payment on November 7, 2011.
ANALYSIS
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. Dep't of Def., 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. Dep't 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. U.S. Postal Serv., 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 Complainant has failed to demonstrate that the Agency breached the specific provisions of the settlement agreement as alleged. Specifically, we note that Complainant has failed to offer evidence that he was not assigned to the ETMS Supervisor bundle on September 22, 2011 as the Agency indicates. Regarding the $300 payable to Complainant as provided in provision (d), a review of the settlement agreement reflects that it did not provide a specific time frame for the payment to be made. While we find that the Agency's payment to Complainant was delayed, we further find that the Agency's actions have cured any breach. The Commission has held that failure to satisfy a time frame specified in a settlement agreement does not prevent a finding of substantial compliance of its terms, especially when all required actions were subsequently completed. See Lazarte v. Dep't of Interior, EEOC Appeal No. 01954274 (Apr. 25, 1996).
CONCLUSION
There is no evidence in the record that the Agency in any way intentionally failed to comply with the terms of the provisions of the instant agreement. Therefore, we find that the Agency has substantially complied with provision (c) of the instant settlement agreement and fully complied with provision (d).
As such, the Commission finds that the Agency did not breach the subject agreement. The Agency's decision is AFFIRMED for the reasons set forth herein.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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 (S0610)
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 (Z0610)
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
July 9, 2012
__________________
Date
2
0120121407
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120121407