U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Joseph J. Jablonski, Jr.,

Complainant,

v

. Robert J.Battista, Chairman,

National Labor Relations Board,

Agency

Appeal No. 01A23730

2003 EEOPUB Lexis 5476

September 17, 2003

DECISION

Complainant appeals to the Commission from the agency's May 28, 2002 decision finding no breach of a May 3, 1996 settlement agreement. The settlement agreement provided that complainant would resign from the agency effective May 3, 1996, and the agency was required in part to pay complainant $50,000.00 in compensatory damages. Provision eleven, which is at issue in the instant appeal, provides that, "[Complainant] agrees not to seek reemployment with the Agency in a career position."

By letter dated May 1, 2002, complainant informed the agency that it had breached the settlement agreement. Complainant stated that on January 23, 2002, he forwarded an application to the agency for a position as an attorney on a career track. Complainant stated that on or about February 10, 2002, he received a response from the agency stating that his job application would not be processed because he had agreed not to seek reemployment with the agency in a career position. Complainant noted that on March 11, 2002, he sent a letter to the General Counsel with regard to his job application. According to complainant, on or about April 12, 2002, he received a letter from the Special Counsel to the General Counsel, reiterating the agency's refusal to process his job application based on the settlement agreement. Complainant stated that it is against the spirit of the EEO settlement process and the settlement agreement itself to bar him in perpetuity from reapplying for an attorney position. Complainant also stated that the agency demanded his immediate resignation as a settlement term at a very late point in settlement negotiations.

In its May 28, 2002 decision, the agency found no breach of the settlement agreement. The agency determined that complainant was untimely in raising his breach claim. The agency stated that complainant has not provided any basis for having waited six years to challenge the provision regarding his resignation. The agency stated that the fact that the resignation date was moved up does not indicate unfair surprise or duress with regard to this provision. The agency noted that complainant has not referenced any recent event that has caused him to believe for the first time that coercion, duress, or misinterpretation occurred when the settlement agreement was executed. With respect to the provision concerning reemployment, the agency determined that complainant's claim of breach was untimely. The agency noted that complainant waited more than 30 days from when he received the agency letter dated February 5, 2002, to raise his breach claim with the EEO Director. The agency also determined that even if complainant's breach claim is timely, the claim nonetheless lacks merit. The agency stated that there is no indication that complainant objected to his immediate resignation at the time the settlement was executed. As for the provision prohibiting complainant from applying for reemployment, the agency stated that the provision is plain and unambiguous. The agency stated that a time limit was not contemplated and that there is no indication that complainant objected to the provision at the time the agreement was executed.

On appeal, complainant claims that the bar against employment re-application does not include the word never and therefore it should not be considered an absolute bar in perpetuity. Complainant argues that in the absence of specific language, the provision should be read to limit his reapplication for employment only for a reasonable period of time. Complainant claims that his desisting from applying to the agency for a five year period is more than a reasonable period of time. With regard to the timeliness of his breach claim, complainant maintains that he immediately contacted the EEO Office after he received the letter from the Special Counsel to the General Counsel. As for his immediate resignation, complainant states that undue pressure was applied by the agency late in the settlement negotiation process when agency officials made it clear that they wanted him out of there as soon as possible. Complainant states that the agency enticed him into negotiations by telling him that he could remain employed with the agency until he secured satisfactory employment, and then subsequently demanded his immediate resignation even though he had not secured satisfactory employment.

In response, the agency asserts that complainant has not acted with due diligence. The agency argues that complainant has offered no explanation as to why he has waited six years to challenge the provision addressing his immediate resignation. The agency further argues that complainant traded his assent to an immediate resignation for the enhanced benefit he derived from a higher monetary payment than the agency originally offered. As for the timeliness of complainant's breach claim concerning the bar against reapplying for employment, the agency asserts that its February 10, 2002 rejection of complainant's job application triggered complainant's obligation to contact the EEO Director and not the April 10, 2002 letter from the Special Counsel. With regard to the merits of this breach claim, the agency asserts that if complainant wished to limit the duration of his obligation to refrain from seeking reemployment with this agency, it was his obligation to ensure that limiting language was included in the agreement. The agency argues that since this provision is clear and unambiguous on its face, it should be permitted to retain the benefit of its bargain and refuse to process complainant's application for reemployment.

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. If the complainant believes that the agency has failed to comply with the terms of a settlement agreement or final action, the complainant shall notify the EEO Director, in writing, of the alleged noncompliance within 30 days of when the complainant knew or should have known of the alleged noncompliance. The complainant may request that the terms of the agreement be specifically implemented, or, alternatively, that the complaint be reinstated for further processing from the point processing ceased.

The Commission has consistently held that settlement agreements are contracts between the complainant and the agency, and 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, 381 (5th Cir. 1984).

With regard to the timeliness of complainant's claim concerning his immediate resignation from the agency, we find that this claim has not been raised in a timely manner. Complainant and the agency executed the settlement agreement on May 3, 1996. We find that complainant has not submitted sufficient justification as to why a claim of coercion, duress, or unfair surprise should be considered six years after complainant entered into the agreement. As for the prohibition on complainant applying for reemployment with the agency in a career position, we will assume arguendo that complainant's claim has been raised in timely fashion. We find that the settlement agreement is clear and unambiguous concerning this issue. The agreement explicitly provided that complainant would not seek reemployment with the agency in a career position. In light of such clarity and there being no mention within the settlement agreement of a time limit, we discern no valid rationale upon which complainant can claim that a time limitation exists on the prohibition. A settlement agreement made in good faith and otherwise valid will not be set aside simply because it appears that one of the parties made a bad bargain. Eggleston, supra.

We find that the agency's determination that it has not breached the settlement agreement is proper and is hereby affirmed.