01981957
04-02-1999
Christina M. Minakais, Appellant, v. F. Whitten Peters, Acting Secretary, Department of the Air Force, Agency.
Christina M. Minakais v. Department of the Air Force
01981957
April 2, 1999
Christina M. Minakais, )
Appellant, )
)
v. ) Appeal No. 01981957
) Agency No. RF0D97008
F. Whitten Peters, )
Acting Secretary, )
Department of the Air Force, )
Agency. )
______________________________)
DECISION
On January 8, 1998, appellant filed a timely appeal with this Commission
from a final agency decision (FAD) dated December 16, 1997, finding
that the agency was in compliance with the terms of the October 10,
1997 settlement agreement into which the parties entered. See 29
C.F.R. ��1614.402, .504(b); EEOC Order No. 960, as amended.
The settlement agreement provided, in pertinent part, that:
In exchange for [the withdrawal of appellant's EEO complaint] the Agency
agrees that/to:
Reprisal action will not be taken against [appellant].
[Appellant's former supervisor (S1)] will not supervise in any way the
[facilities appellant manages (appellant's facilities)]. In addition
[S1] will not make any budget decisions with respect to [appellant's
facilities]. [S1] will be counseled not to have any personal or
professional contact with [appellant].
Management agrees to conduct a desk audit of [appellant's] position as
soon as possible, and agrees to abide by the final determination. []
By letter to the agency dated November 18, 1997, appellant alleged that
the agency was in breach of the settlement agreement, and requested that
the agency reinstate her complaint at the point at which processing
ceased. Specifically, appellant alleged that the agency delayed
conducting the desk audit; that S1 continued to sign as approving
authority on financial transfers for her facilities; and that additional
acts of reprisal were taken against her.
In its December 16, 1997 FAD, the agency denied that it was in breach of
the agreement. The agency determined that unavoidable delays occurred due
to its search for an unbiased classifier, and after appellant approved of
the individual selected to conduct the desk audit, the process began on
December 1, 1997. The agency acknowledged that S1 signed as approving
authority on financial transfers for her facility, but contended that
his actions were administrative in nature and were not in violation of
the agreement. Moreover, the agency maintained that actions were taken
to ensure that all future financial transfers were approved by persons
other than S1.
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 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).
As a preliminary matter, EEOC regulation 29 C.F.R. �1614.504 provides
that if a complainant believes that the agency has failed to comply with
the terms of a settlement agreement, she may request that the terms of
the agreement be specifically implemented, or, alternatively, that the
complaint be reinstated for further processing. However, the Commission
has held that a complaint which alleges reprisal or further discrimination
in violation of a settlement agency's "no reprisal" clause, is to be
processed as separate complaints and not as a breach of settlement.
Bindal v. Department of Veterans Affairs, EEOC Request No. 05900225
(August 9, 1990); 29 C.F.R. �1614.504(c). Accordingly, if appellant
wishes to pursue her allegations of reprisal, she is advised to initiate
contact with an EEO Counselor and undergo counseling on these matters.
The agency shall use as the date of initial EEO Counselor contact the
date(s) on which appellant first raised the matters in conjunction with
the instant allegations of settlement breach.
Appellant alleged that the agency violated the terms of the settlement
agreement when S1 signed as approving official for financial transfers
regarding appellant's facilities. Pursuant to 29 C.F.R. �1614.504(b),
an agency has 35 days from the receipt of an appellant's allegation of
breach to resolve the matter. The Commission interprets that provision
to mean that an agency has 35 days within which to cure any breach
that has occurred. See Covington v. USPS, EEOC Appeal No. 01912311
(September 30, 1991). In its December 16, 1997 FAD, the agency asserted
that steps were taken to ensure that S1 would no longer act as approving
official for financial transfers relating to appellant's facilities.
Although appellant provided 44 copies of transfer forms signed by S1, all
of them were dated prior to the date of the FAD. As appellant provided
no evidence showing that S1 continued to act as approving official after
the agency issued its FAD, we find that the agency effectively cured
its technical breach of the agreement.
With regard to the desk audit, however, we find that there is
insufficient information in the record to make a compliance determination.
We interpret the agreement to require completion of the desk audit "as
soon as possible," and although the agency asserted that the process began
on December 1, 1997, appellant contends that it was not yet complete
more than three months later. As the record contains no documentation
or other evidence supporting either position, we must remand the matter
to the agency for further processing in accordance with the Order below.
ORDER
The agency is ORDERED to take the following actions:
Within fifteen (15) calendar days of the date this decision becomes final,
the agency shall undertake a supplemental investigation to determine
whether a desk audit was completed for appellant's position "as soon as
possible."
Within thirty (30) calendar days of the date this decision becomes final,
the agency shall issue a notice of processing and/or a new FAD regarding
this issue, and include any documentation and/or other evidence used in
making that decision.
A copy of the agency's notice of processing and/or new FAD must be sent
to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0595)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action.
The report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the appellant. If the agency does not comply with the Commission's
order, the appellant may petition the Commission for enforcement of
the order. 29 C.F.R. �1614.503(a). The appellant also has the right
to file a civil action to enforce compliance with the Commission's
order prior to or following an administrative petition for enforcement.
See 29 C.F.R. ��1614.408, 1614.409, and 1614.503(g). Alternatively,
the appellant has the right to file a civil action on the underlying
complaint in accordance with the paragraph below entitled "Right to File
A Civil Action." 29 C.F.R. ��1614.408 and 1614.409. A civil action for
enforcement or a civil action on the underlying complaint is subject to
the deadline stated in 42 U.S.C. �2000e-16(c) (Supp. V 1993). If the
appellant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. �1614.410.
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 (R0993)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court. 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:
April 2, 1999
____________________________
DATE Ronnie Blumenthal, Director
Office of Federal Operations