01A01042
02-07-2001
Karrie Scharman, Complainant, v. Paul H. O'Neill, Secretary, Department of the Treasury, Agency.
Karrie Scharman v. Department of Treasury
01A01042
February 7, 2001
.
Karrie Scharman,
Complainant,
v.
Paul H. O'Neill,
Secretary,
Department of the Treasury,
Agency.
Appeal No. 01A01042
Agency No. TD 99-0019B
DECISION
Complainant filed a timely appeal with this Commission from a final
decision by the agency dated October 20, 1999, finding that it was in
compliance with the terms of the July 29, 1998 settlement agreement into
which the parties entered.<1> 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 Agency will
Complete a review of (NLSC) case within 15 calendar days in the areas
of Issue Identification and issue a Manager's award within 45 calendar
days of such review as determined by the review and concurred by the
Division Chief.
Provide a detail to review staff of a duration not in excess of three (3)
weeks in the Baltimore District with travel to be completed by September
30, 1998. The complainant will inform the agency of availability.
. . . .
The parties agree that the facts of this settlement agreement and all
terms contained therein shall not be published in any manner except as
is necessary for the parties to carry out the terms of the agreement.
Failure of the parties to comply with this provision will result in a
breach of this agreement.
By letter to the agency dated March 8, 1999, complainant claimed
that the agency breached the settlement agreement. Specifically,
complainant claimed that during the settlement process the agency
representative told complainant that the agency would �correct the
wrongs that were committed,� by posting the Bingo Project Coordinator
position and providing complainant preferential consideration, and that
complainant was not placed in the position. Complainant also claimed
that the agency breached the agreement when the Assistant EP/EO Division
Chief �unnecessarily disclosed and discussed the terms of the agreement�
during a 2nd Step Union Grievance meeting.
On October 20, 1999, the agency issued a decision finding that it was in
compliance with the July 28, 1998 settlement agreement. According to the
agency, complainant claimed the agreement was breached when his Division
Chief disclosed certain aspects of the settlement during a December 1998
grievance meeting. Noting that it was unclear whether complainant was
also alleging that the agreement was breached when he was not selected
for the Bingo Project Coordinator position, the agency indicated that
both matters would be addressed. With respect to the claimed disclosure
of settlement terms, the agency determined that complainant's claim was
untimely. Regarding the Bingo Project Coordinator position, the agency
concluded that agreement did not require the agency to select complainant.
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, complainant contends that the agency breached the
agreement when it failed to place her in the Bingo Project Coordinator
position. However, a review of the settlement agreement terms shows
that the position was not addressed by the parties. EEOC Regulation
29 C.F.R. � 1614.603 provides that �[a]ny settlement reached shall be
in writing and signed by both parties and shall identify the claims
resolved.� The Commission has upheld the validity of a settlement
agreement entered into orally in one type of situation - during a
hearing before an EEO Administrative Judge where the hearing transcript
evidenced the agreement. See Acree v. Department of the Navy, EEOC
Request No. 05900784 (October 4, 1990). Here, complainant admits that
the position matter was not reflected in the agreement but mentioned
during the settlement process by the agency representative. According to
complainant, it was �implied� that if she settled she would get back her
Bingo Project Coordinator job. The Commission finds that the agency was
not required to post or place complainant in the Bingo Project Coordinator
position as the purported oral term was not reduced to a writing.
EEOC Regulation 29 C.F.R. � 1614.504 provides that if the complainant
believes that the agency failed to comply with its final action, the
complainant should notify the Director of Equal Employment Opportunity,
in writing, of the claimed noncompliance with the settlement agreement,
within thirty (30) days of when the complainant knew or should have
known of the claimed noncompliance.
Complainant claimed that the agreement was breached when, during a 2nd
Step Union Grievance meeting for Higher Graded duties, the Assistant
EP/EO Division Chief disclosed the terms of the settlement. The agency
dismissed the claim on the grounds that it was untimely raised. The
agency decision indicated that the claimed meeting occurred in December
1998, thereby making complainant's March 8, 1999 claim of settlement
breach beyond the thirty-day time limit. However, it is unclear from
the present record, whether the claimed breach occurred during the 2nd
Step Grievance meeting in December 1998, or at some subsequent date.
Assuming arguendo that complainant's claim was timely, we find that she
failed to show that the agency breached the confidentiality provision
of the agreement. There is no evidence in the record showing that
the Division Chief discussed and disclosed the terms of the settlement
agreement during the grievance meeting or thereafter.
Accordingly, the agency's decision finding it was in compliance with
the settlement agreement was proper and is hereby 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
February 7, 2001
__________________
Date
1On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply
to all federal sector EEO complaints pending at any stage in the
administrative process. Consequently, the Commission will apply
the revised regulations found at 29 C.F.R. Part 1614 in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.