01a55266
12-12-2005
Jeanelle M. Tolbert, Complainant, v. R. James Nicholson, Secretary, Department of Veterans Affairs, Agency.
Jeanelle M. Tolbert v. Department of Veterans Affairs
01A55266
December 12, 2005
.
Jeanelle M. Tolbert,
Complainant,
v.
R. James Nicholson,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A55266
Agency No. 200J-0541-2004-104505
DECISION
Complainant filed a timely appeal with this Commission from a final
decision by the agency dated July 12, 2005, finding that it was in
compliance with the terms of the March 11, 2005 settlement agreement
into which the parties entered.
The settlement agreement provided, in pertinent part, that:
I. The Department hereby agrees to:
(a) Ensure that the employee works in an environment free of harassment
and/or retaliation.
(b) Take disciplinary action only for just cause.
Mitigate the proposed 30-[day] suspension to a 14-day paper suspension.
Lift the sick leave and tardy restrictions.
By letter to the agency dated May 31, 2005, complainant alleged that
the agency was in breach of the settlement agreement. Specifically,
complainant alleged that she was the target of continued harassment
and retaliation. Complainant also asserted that the agency had issued
her another proposed two week suspension in violation of the settlement
agreement.
In its July 12, 2005 final decision, the agency concluded the settlement
agreement had not been breached. The agency instructed complainant to
contact an EEO Counselor if she wished to pursue claims of subsequent
discriminatory harassment.
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).
The record reveals that the Medical Center Director stated that the
January 27, 2005 proposed 30 day suspension, which was the subject of
the settlement agreement was mitigated to a 14-day suspension on March
11, 2005, as stipulated in the settlement agreement. Additionally, the
Chief of Acquisition and Material Management Service and the Medical
Center Director argued that the leave restriction letter dated September
17, 2004, and the tardiness warning letter dated September 1, 2004, were
rescinded as of the effective date of the settlement agreement. Therefore,
we find that complainant has failed to show that the agency breached
the March 11, 2005 settlement agreement. Complainant's claims of
breach appear to be claims of subsequent discriminatory harassment.
The Commission finds that the agency properly instructed complainant to
contact an EEO Counselor if she wished to pursue such claims. See 29
C.F.R. � 1614.504(c).
According, the agency's decision finding of no breach of the settlement
agreement is 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
December 12, 2005
__________________
Date