01A32979_r
02-11-2004
Dianne E. Ranne, Complainant, v. John W. Snow, Secretary, Department of the Treasury, Agency.
Dianne E. Ranne v. Department of the Treasury
01A32979
February 11, 2004
.
Dianne E. Ranne,
Complainant,
v.
John W. Snow,
Secretary,
Department of the Treasury,
Agency.
Appeal No. 01A32979
Agency No. 01-2269
Hearing No. 310-A2-5052X
DECISION
Complainant filed a timely appeal with this Commission from a final
decision (FAD) by the agency dated July 28, 2003, finding that it was
in compliance with the terms of the June 24, 2002 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 June 24, 2002 settlement agreement provided, in pertinent part, that:
1. The Bureau agrees; that upon receipt of the medical information from
[Complainant's] psychologist and the Bureau's psychologist/psychiatrist
which states that [Complainant's] phobia is resolved to the point that
her emotional stability and level of anxiety would not be adversely
affected by the presence of insects or crickets, regardless of the
number of insects or crickets or the time spent around them, and that
it would not reasonably interfere with her ability to concentrate
or perform the duties and responsibilities of a police officer, it
will non-competitively temporarily promote, not to exceed one year,
[Complainant] to a police officer position (at the grade and step
she was at the time she was last employed as BEP police officer). If
[Complainant] successfully completes this one-year probationary period
without incident or need of accommodation for her phobia, the Bureau
will make her promotion permanent.
2. [Complainant]
..........
d. Agrees to successfully complete and pass all physical and medical
requirements of a police officer.
..........
3. [Complainant] acknowledges, understands and agrees that in the event
that her psychologist or the Bureau's psychologist/psychiatrist do
not definitively state that her phobia is resolved to the point that
her emotional stability and level of anxiety would not be adversely
affected by the presence of insects or crickets, regardless of the
number of insects or crickets or the time spent around them, and that
it would not reasonably interfere with her ability to concentrate or
perform the duties and responsibilities of a police officer, or if she
fails to pass the medical or physical requirements of a police officer,
or fails to pass the firearm requirements of a police officer she will
not be placed in the position of police officer.
By letter to the agency dated April 3, 2003, complainant through her
attorney, alleged that the agency breached the settlement agreement
and requested that the agency implement the terms of the agreement by
reinstating her to the position of a police officer. Specifically,
complainant claimed that the agency breached the settlement agreement
on February 5, 2003, when it determined that complainant would not be
reinstated as a police officer because she failed the requisite hearing
portion of the physical examination. Complainant further alleged that
her hearing was the same as it was when she was initially hired by the
agency as a police officer; and that despite her hearing impairment,
she successfully completed her probationary period and performed her
duties competently for the years of 1998, 1999 and 2000. Furthermore,
complainant alleged that the agency acted in bad faith in settling
her complaint.
In its July 28, 2003 FAD, the agency found there was no breach.
The agency determined that the language in provision 3 of the settlement
agreement required complainant to undergo a physical examination in
order to be a police officer. The agency further determined that
because complainant failed the requisite audiometric test, she was
not placed in the position of a police officer. The agency concluded
that there was no evidence that any of the agency officials engaged in
bad faith during negotiations of complainant's settlement agreement.
Specifically, the agency concluded that complainant was represented by
an attorney and that they had a reasonable period of time to consider
the terms of the settlement agreement.
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, we find that the agency properly found no breach.
Specifically, we find the language in provision 2.d. states that
complainant agrees to successfully complete and pass all physical and
medical requirements of a police officer. We also find the language
in provision 3 states that if complainant fails to pass the medical or
physical requirements of a police officer, she would not be placed in
the position of police officer. Here, complainant failed the requisite
hearing test which resulted in her not being placed in the position
of a police officer. Additionally, complainant has failed to show
that the agency engaged in bad faith or that she was misled during the
negotiations of complainant's settlement agreement. Therefore, we find
that the agency complied with the June 24, 2002 settlement agreement.
Accordingly, the agency's final decision finding no settlement breach
is hereby AFFIRMED.
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
February 11, 2004
__________________
Date