01993198
04-13-2001
Joyce C. Clifton, Complainant, v. Lawrence J. Delaney, Acting Secretary, Department of the Air Force, Agency.
Joyce C. Clifton v. Department of the Air Force
01993198
April 13, 2001
.
Joyce C. Clifton,
Complainant,
v.
Lawrence J. Delaney,
Acting Secretary,
Department of the Air Force,
Agency.
Appeal No. 01993198
Agency No. AC900990220
DECISION
Joyce C. Clifton (complainant) filed a timely appeal with this Commission
from a final decision (FAD) by the agency dated February 10, 1999, finding
that it was in compliance with the terms of the June 17, 1997 settlement
agreement into which the parties had 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:
(2) [T]he Agency agrees that:
....
Complainant's Air Force 971 and 201 files will be cleared of any negative
comments from LB.
Complainant's 1996 Civilian Performance and Promotion Appraisal will
be reaccomplished to equal the same as the 1995 appraisal (without the
monetary award).
Complainant alleged that the agency breached these provisions by failing
to remove certain negative comments from her 971 file and by failing to
remove the old 1996 appraisal from the 971 file. On August 26, 1997, the
agency determined that it had complied with the agreement. Complainant
appealed and, on December 23, 1998, this Commission remanded the matter.
The Commission noted that the agency failed to submit evidence to show
that complainant's 971 and 201 files did not contain negative comments
from LB. The Commission also found that the agency failed to submit
evidence to show that the old 1996 appraisal had been removed from the 971
file, noting that failure to remove the old appraisal would constitute
a breach of the agreement. The Commission ordered the agency to supply
affidavits from appropriate officials showing that complainant's 971
and 201 files did not contain negative comments, and that the 971 file
did not contain the old 1996 appraisal. After supplementing the record
with these affidavits, the agency was to issue a new decision determining
whether it had breached provisions 2(b) and 2(c).
In its February 10, 1999 FAD, the agency concluded that it was in
compliance with the settlement agreement. The agency included affidavits
from appropriate agency officials, asserting that complainant's 971 and
201 files contained no negative comments and that the 971 file did not
contain the old 1996 appraisal. On appeal, complainant contends that the
goal of the settlement agreement was to provide her with a fresh start,
assigning her to a new division and a new supervisor. Her 971 and 201
files were to be cleared of negative comments to allow this fresh start.
Complainant asserts that the agency breached the agreement when it failed
to remove the offending material prior to forwarding the 971 and 201
files to her new supervisor. She asks that her complaints 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).
In the instant case, the agency, complying with the Commission's
previous order, provided affidavits stating that the negative comments
were removed and that the old 1996 appraisal was not in the 971 file.
Although complainant argues that the agency breached the settlement
agreement when it did not comply with these provisions before forwarding
her files to her new supervisor, the agreement does not provide that
performance under provisions 2(b) and 2(c) be completed before complainant
is reassigned. Although this may have been complainant's intent, it is
the intent of the parties as expressed in the agreement, and not some
unexpressed intent, that controls. See Eggleston, supra. Moreover,
Commission precedent holds that provisions without time periods, such as
those at issue in the case at hand, are generally understood to require
compliance within a reasonable amount of time. See Gomez v. Department of
Treasury, EEOC Request No. 05930921 (February 10, 1994). Complainant
failed to establish that the agency did not comply with provisions 2(b)
and 2(c) within a reasonable amount of time. Accordingly, complainant
failed to show that the agency breached any of the provisions of the
settlement agreement. The FAD is therefore AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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
April 13, 2001
Date