0120093301
02-04-2010
Elton D. Evans, Complainant, v. Pete Geren, Secretary, Department of the Army, Agency.
Elton D. Evans,
Complainant,
v.
Pete Geren,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120093301
Agency No. ARRILEY09JAN00080
DECISION
Complainant filed a timely appeal with this Commission from a final
decision (FAD) by the agency dated July 13, 2009, finding that it was
in compliance with the terms of the May 21, 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:
(1) Respondent will have the Chief of the Management Support Division
review the RITA for the complainant's move to Fort Riley.
(2) The complainant agrees to: Dismiss his complaint according to
the terms in [the] paragraph . . . below.
(3) Complainant's signature on this agreement constitutes a full
and complete settlement of any and all issues and claims arising from
the circumstances of the aforementioned EEO complaint(s). This includes,
but is not limited to, attorney's fees and costs arising from or related
to the aforementioned complaint(s). No other agreements shall be binding
unless signed by all parties. In addition, the complainant agrees to
waive his/her rights to pursue administrative or judicial action in any
forum concerning the matters raised in this complaint and that they will
not be made the subject of future litigation.
By letter to the agency dated June 19, 2009, complainant alleged that
the mediation session that resulted in the settlement agreement was
mishandled by the mediator because she would not permit the parties
to bring outside materials into the mediation and that complainant's
inability "to refer to and use documents supporting [his] claim during
mediation prevented [complainant] from making an informed assessment
of the merits of the settlement agreement, and substantially diminished
[complainant's] ability to make his case during mediation or to impress
[the mediator] with the merits of his case." Complainant further stated
that the mediator misinformed complainant and told him that acceptance of
the agreement "would only be a step in the processing of his complaint
and that the investigation of his complaint would continue after the
mediation." Complainant requested that the agreement be set aside and
that his complaint be reinstated.
In its July 13, 2009 FAD, the agency found that complainant had not
established just cause for setting aside the agreement and reinstating
his complaint. The FAD noted that complainant was told to read the
agreement before signing it and that the agreement clearly states that
his complaint would be dismissed. The agency further contends that
complainant was provided a full day to sign the agreement "which provided
[him] the opportunity to reflect upon the conduct of the mediation
session and the terms of settlement, prior to signing a binding contract."
Additionally, the agency noted, if complainant objected to the mediator's
prohibition against outside materials, he was free to opt out of the
mediation process or refuse to sign the agreement. Finally, the agency
found that complainant's claim that he was misled was unsupported by
corroborative evidence.
On appeal, complainant argues that the agreement should be set aside for
lack of consideration. Specifically, complainant argues that the clause
numbered (1) above provides no consideration for complainant's agreement
to drop the complaint because the agency merely promises to "review
the RITA for the complainant's move to Fort Riley" but does not commit
the agency to anything more than "engage in inconsequential review."
Complainant argues that because he is not an attorney, he did not realize
at the time of signing that this clause provided no consideration.
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 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 agreement clearly states that
complainant agreed to dismiss his complaint and that even without
an attorney, such a clause is clear and unambiguous on its face.
Furthermore, even assuming that complainant was misinformed by the
mediator, the Commission has long held that it is the intent of the
parties as expressed in the contract, not some unexpressed intention,
that controls the contract's construction. See Eggleston, supra. As the
agency points out on appeal, if the agreement permitted complainant to
continue his complaint, the agency would have received no consideration
for the promises the agency made to complainant. As regards the
mediator's decision to bar outside materials from the mediation, we note
that complainant could have refused to sign the agreement if he felt that
such conditions were unfair. Finally, as regards complainant's claim
that the agency's promise to merely "review the RITA for the complainant's
move to Fort Riley" provides no consideration, the agreement also contains
other promises the agency made to complainant in exchange for his promise
to drop his complaint, such as the promise to upgrade his rating for the
rating period from October 2007 to September 2008 and provide him a five
percent pay increase. The agency on appeal has presented an internal
memorandum that predates complainant's breach allegation and states
that these promises have been completed, see Agency Appellate Brief,
Exhibit 4, and complainant makes no claim to the contrary. We note
that if the agreement is voided and complainant's complaint reinstated,
complainant would have to return such benefits.
Therefore, following a review of the record, we find that complainant
has not met his burden of establishing that the agreement should be
voided and his complaint reinstated. Accordingly, the FAD is 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
February 4, 2010
__________________
Date
2
0120093301
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
5
0120093301