01981881
03-26-1999
Lewis R. Rowe, Appellant, v. John H. Dalton, Secretary, Department of the Navy, Agency.
Lewis R. Rowe v. Department of the Navy
01981881
March 26, 1999
Lewis R. Rowe, )
Appellant, )
)
v. ) Appeal No. 01981881
) Agency No. DON-95-00146-012
John H. Dalton, )
Secretary, )
Department of the Navy, )
Agency. )
______________________________)
DECISION
Based on a review of the record, we find that the agency properly
dismissed appellant's complaint, pursuant to EEOC Regulation 29
C.F.R. �1614.107(a), for failure to state a claim. Appellant alleged that
he was subjected to discrimination on the bases of physical disability
(neck and back injury) and mental disability (stress, anxiety, depression)
when from 1988 through April 12, 1995, the agency failed to offer him
a position which reasonably accommodated his disabilities.
The record discloses that on September 22, 1995, appellant, with advice
of counsel, entered into a settlement agreement within the context of his
Merit Systems Protection Board (MSPB) appeal. The settlement agreement
provided, in pertinent part:
In consideration of the promises contained within this Agreement,
the Appellant agrees to:
(2) Not institute any other actions, charges, complaints, class actions,
appeals, or inquiries against the [agency], or any of its officials or
employees, with respect to any matter related to appellant's employment
with the [agency] occurring prior to this Settlement Agreement.
As a material inducement to the [agency] to enter into this Agreement,
Appellant irrevocably and unconditionally releases, acquits, and
discharges the [agency], its officers, employees, and representatives,
from any and all charges, complaints, claims, liabilities, obligations,
promises, agreements, controversies, suits, rights, damages, actions,
costs, losses, debts, and expenses incurred related to any matter
regarding Appellant's employment with the [agency], or any term or
condition thereof, occurring prior to this Agreement, except as provided
in paragraph I(A) above.
On December 5, 1997, the agency issued a final decision dismissing
appellant's complaint for failure to state a claim. Specifically,
the agency concluded that appellant waived any claims, complaints,
etc. involving employment matters that occurred prior to the signing
of the settlement agreement appellant entered into in connection with
his MSPB appeal. As the instant complaint, which was filed on August
15, 1995, clearly related to employment matters encompassed by the
agreement, the agency determined that appellant waived his complaint
of discrimination.
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).
Moreover, it is well-established that a complainant validly may waive
those claims arising from "discriminatory acts or practices which antedate
the execution of the release." Martinez v. Department of the Army,
EEOC Request No. 05920550 (August 27, 1992), quoting Rogers v. General
Electric Co., 781 F.2d 452, 454 (5th Cir. 1986). In the instant case,
the record discloses that appellant expressly waived all complaints,
claims, etc. arising out of his employment with the agency prior to the
date of the September 22, 1995 MSPB settlement agreement. As appellant's
complaint pre-dated the settlement agreement, we find that he effectively
waived his rights under the EEO process.
Accordingly, the agency's final decision dismissing appellant's complaint
is AFFIRMED for the reasons set forth herein.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. In the alternative, you may file a
civil action AFTER ONE HUNDRED AND EIGHTY (180) CALENDAR DAYS of the date
you filed your complaint with the agency, or filed your appeal with the
Commission. 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. Filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1092)
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:
March 26, 1999
____________________________
DATE Ronnie Blumenthal, Director
Office of Federal Operations