01A10531_r
06-25-2002
Corazon M. Cruz, Complainant, v. Donald H. Rumsfeld, Secretary, Department of Defense, (Defense Finance & Accounting Service), Agency.
Corazon M. Cruz v. Defense Finance and Accounting Service
01A10531
June 25, 2002
.
Corazon M. Cruz,
Complainant,
v.
Donald H. Rumsfeld,
Secretary,
Department of Defense,
(Defense Finance & Accounting Service),
Agency.
Appeal No. 01A10531
Agency No. DFAS-DE-DENV-99-003
DECISION
Complainant filed a timely appeal with this Commission from a final
decision (FAD) by the agency dated September 14, 2000, finding that
it was in compliance with the terms of the April 29, 1999 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) The Complainant will be promoted non-competitively to Position #NC060,
Financial Management Specialist, GS-501-12, in the Directorate of Security
Assistance, DFAS-DE-IA, within forty-five (45) days of the signing of
this Agreement. This action will be processed as an exception to the
requirement to clear internal as well as external (PPP) priorities.
Until this promotion, Complainant will continue to be assigned to her
current position. Complainant will, at all times, perform the duties
and responsibilities of the position to which assigned.<1>
By letter to the agency dated May 1, 2000, complainant alleged that
the agency breached the settlement agreement, and requested that the
agency implement its terms. Specifically, complainant alleged that the
agency removed her from the position agreed to in the settlement and
reassigned her to the position she held at the time she initiated her
formal complaint against the agency. Complainant requested that her
complaint be reinstated.
In its September 14, 2000 FAD, the agency offered no specific response
to complainant's breach allegation. The agency's FAD simply stated that
it was denying complainant's request that her complaint be reinstated.
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).
The settlement agreement dictated an affirmative agency obligation to
place complainant in the position of Financial Management Specialist,
GS-501-12. The record reflects also, and the agency does not dispute,
that within one year from complainant's assignment to the position
agreed to in the settlement, she was reassigned to the position she held
prior to the signing of the agreement. In its FAD the agency offers no
justification for its action and fails to submit a brief in opposition
to complainant's appeal.
The record establishes that the agency breached the April 29, 1999
agreement. The agency has failed to provide the Commission with any
detail or specific explanation for reassigning complainant in violation
of the agreement. Moreover, the agency has offered no evidence that it
has attempted to cure its breach of the agreement.
Once a breach is found, as in the instant case remedial relief is either
the reinstatement of the complaint for further processing or specific
performance of the settlement agreement. If a complainant's complaint is
reinstated for further processing, then the parties must be returned to
the status quo at the time that the parties entered into the agreement,
which requires that complainant return any benefits received pursuant
to the settlement agreement. See Armour v. Department of Defense,
EEOC Appeal No. 01965593 (June 24, 1997); Komiskey v. Department of the
Army, EEOC Appeal No. 019655696 (September 5, 1996). Consequently,
on remand complainant shall be advised that in order to reinstate
her complaint, a condition precedent is the return of any benefits
received through the execution of the provisions of the agreement.
In view of this requirement, we therefore give complainant the option,
in accordance with the ORDER below, of either returning the benefits
conferred pursuant to the agreement and reinstating the complaint, or
keeping the benefits conferred pursuant to the agreement and having the
agreement specifically enforced. Accordingly, the agency's decision
finding no breach is REVERSED and the matter is REMANDED for further
processing in accordance with the Order below.
ORDER
The agency is ORDERED to notify complainant of her option to return
to the status quo prior to the signing of the settlement agreement and
having her complaint reinstated, or having the terms of the agreement
specifically enforced. This notification must inform complainant that
choosing specific performance of her agreement will result in her being
placed in the position of Financial Management Specialist, GS-501-12,
in the Directorate of Security Assistance, DFAS-DE-IA, but choosing
reinstatement of her underlying complaint will require that she remain
in the position she occupied before the agreement was executed.
The agency shall so notify complainant within fifteen (15) calendar days
of the date this decision becomes final. Complainant shall be notified
that in order to return to the status quo ante, she must return any
benefits received pursuant to the agreement. The agency shall determine
any payment due complainant, or return of consideration or benefits
due from complainant, within thirty (30) calendar days of the date this
decision becomes final, and shall include such information in the notice
to complainant.
If complainant elects to return to the status quo ante and she returns
any monies or benefits owing to the agency, as specified above, the
agency shall resume processing complainant's complaint from the point
processing ceased pursuant to EEOC Regulation 29 C.F.R. � 1614.108
et seq. If complainant elects not to return to the status quo ante,
i.e., not to return any consideration owing the agency, the agency shall
notify complainant that the terms of the settlement agreement will be
specifically enforced.
A copy of the agency's notice to complainant regarding her options,
including the determination of consideration due or owing, as well as
a copy of either the correspondence, reinstating the complaint for
processing or the correspondence notifying the complainant that the
terms of the agreement will be specifically enforced, must be sent to
the Compliance officer, as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
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 complainant. If the agency does not comply with the Commission's
order, the complainant may petition the Commission for enforcement
of the order. 29 C.F.R. � 1614.503(a). The complainant 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. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g).
Alternatively, the complainant 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. �� 1614.407 and 1614.408.
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)
(1994 & Supp. IV 1999). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 29 C.F.R. � 1614.409.
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 (R0900)
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 within ninety (90) calendar days from the date
that you receive this decision. 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 (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
June 25, 2002
__________________
Date
1The settlement agreement also provided that complainant would be paid
$1,900.00. That provision is not at issue in the instant appeal.