0120070222
06-20-2007
Saman F. Khoury, Complainant, v. Pete Geren, Acting Secretary, Department of the Army, Agency.
Saman F. Khoury,
Complainant,
v.
Pete Geren,
Acting Secretary,
Department of the Army,
Agency.
Appeal No. 0120070222
Agency No. ARPICAT04MAY04380
DECISION
Complainant filed a timely appeal with this Commission from a final
decision (FAD) by the agency dated September 15, 2006, finding that
complainant untimely submitted the letter of alleged noncompliance with
terms of the March 23, 2005 settlement agreement. See 29 C.F.R. �
1614.402; 29 C.F.R. � 1614.504(b); and 29 C.F.R. � 1614.405. In the
underlying complaint, complainant alleged that the agency discriminated
against him based on his physical disability, sustained in an on-the-job
injury, in violation of the Rehabilitation Act of 1973.
The settlement agreement provided, in pertinent part, that:
(3a) Subject to approval by higher headquarters as stated in
sub-paragraph 3(c) below, management agrees to provide employee with
first class air travel as permitted in the Joint Travel Regulation (JTR)
paragraph C22204-B5c(2), if air travel is required in the performance
of his duties. This NSA does not expire and is transferable.
(3d) If request is denied, management and the employee will discuss
alternative modes of travel to bring the employee to the TDY site and
return. Considering the medical needs of the employee, management will
determine the most reasonable alternative means of travel.
(5) If the complainant believes that the Army has failed to comply
with the terms of this settlement agreement, the complainant shall notify
the Deputy for EEO Compliance and Complaints Review (EEOCCR) . . . in
writing, of the alleged noncompliance within 30 calendar days of when
the complainant knew or should have known of the alleged noncompliance.
On July 7, 2006, complainant contacted an EEO Counselor alleging that
the agency had breached the settlement agreement. Subsequently, by letter
to the agency dated August 15, 2006, complainant again alleged that the
agency had breached the settlement agreement, and requested that the
agency comply with the terms of the settlement agreement. Specifically,
complainant alleged that the agency failed to comply with the terms of the
settlement agreement when it denied him first class air travel without
written notification of denial by higher headquarters, and fraudulently
entered into the settlement agreement with the intent not to perform. The
complainant further alleged acts of discrimination stemming from a TDY
assignment in Rock Island Arsenal, Illinois, which required complainant
to travel from New Jersey to Illinois. The record is unclear as to
the exact dates of the trip, but complainant met with his supervisor in
March or April 2006, where he learned that his request for first class
air travel was denied and he would go by train to his TDY assignment.
In its September 15, 2006 FAD, the agency concluded that the complainant's
allegations of noncompliance were untimely filed with the EEOCCR and
therefore complainant's allegations were dismissed. Complainant appealed
the FAD with the Commission. On appeal, complainant alleges that he
timely filed his letter of noncompliance. He further alleges that the
agency's response to the EEOCCR's request for information was not attached
to the FAD. Finally, complainant alleges that dismissal for timeliness
unfairly decided his case on the merits. The agency argues, on appeal,
that complainant did not timely file the letter of noncompliance as per
the settlement agreement, and therefore, its dismissal of complainant's
allegations of noncompliance was appropriate.
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, subsection 5 of the settlement agreement, which
mirrors 29 C.F.R. � 1614.504(a), provides that complainant has 30
calendar days from the day he knew or should have known of the alleged
noncompliance with the settlement agreement. A review of the record shows
that complainant knew or should have known of the alleged noncompliance
with the settlement agreement sometime in March or April 2006, at which
time the supervisor verbally informed complainant of the agency's denial
of his request for first class air travel and that he would be required to
take a train instead. The plain meaning of the terms of the settlement
agreement is that complainant was required to file a letter of alleged
noncompliance within 30 calendar days from the date of this meeting with
his supervisor. Complainant did not file the letter of noncompliance
with the EEOCCR until August 15, 2006, well past the 30 calendar days
provided for by the settlement agreement and 29 C.F.R. � 1614.504(a).
Even complainant's initial contact, on July 7, 2006, with the EEO
Counselor regarding noncompliance was beyond the 30 calendar day time
limitation period. Therefore, we find that complainant notified the
agency of its alleged noncompliance with the settlement agreement in an
untimely manner and that the agency correctly dismissed complainant's
allegations of noncompliance.
We also decline to address any of the additional allegations of
discrimination alleged in the letter of noncompliance. We find that
complainant's allegations constitute subsequent acts of alleged
discrimination regarding reasonable accommodations for his alleged
disability. Allegations that subsequent acts of discrimination violate
a settlement agreement are processed as separate complaints rather than
breach of settlement claims. See 29 C.F.R. � 1614.504(c). Complainant is
advised that if he wishes to pursue these additional allegations through
the EEO process, he must contact an EEO Counselor within 15 days after he
receives this decision. The Commission advises the agency if complainant
seeks EEO counseling regarding these new allegations within the above
15-day period, the date complainant notified the agency of the alleged
breach, August 15, 2006, shall be deemed the date of initial EEO contact,
unless he raised these allegations when he contacted the EEO Counselor
on July 7, 2006, in which case that earlier date shall serve as the EEO
counselor contact date. See Qatasha v. Navy, EEOC Appeal No. 01961105
(November 15, 1996), request for reconsideration denied, EEOC Request
No. 05970201 (January 16, 1998).
Accordingly, we AFFIRM the agency's final decision.
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
___6/20/07________________
Date
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0120070222
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120070222