01A33991_r
03-31-2004
Marilyn L. Hunter, Complainant, v. John W. Snow, Secretary, Department of the Treasury, Agency.
Marilyn L. Hunter v. Department of the Treasury
01A33991
3/31/2004
.
Marilyn L. Hunter,
Complainant,
v.
John W. Snow,
Secretary,
Department of the Treasury,
Agency.
Appeal No. 01A33991
Agency No. A1KAN030020
DECISION
By letter to the agency dated March 19, 2003, complainant alleged that
the agency was in breach of a March 5, 2003 settlement agreement.
The March 5, 2003 settlement agreement provided, in pertinent part, that:
(1) The Agency agrees to the following:
(a) Reevaluate the Aggrieved based on the information gathered from
the proper rating period and to further take into consideration any
narratives provided by the Aggrieved regarding her performance and to
do so no later than 48 hours after receiving such narrative.
Complainant in her March 19, 2003 letter alleged that the agency failed
to revise her appraisal as set forth in the settlement agreement.
Complainant filed an appeal with this Commission on June 23, 2003,
pursuant to 29 C.F.R. � 1614.504(b). Subsequently, the agency issued a
final decision on August 4, 2003. The agency concluded that, although
the agreement was not timely implemented, the agency was currently in
compliance with the settlement agreement. The agency asserted, �the
revised evaluation was prepared by the Operations Manager and discussed
with [complainant] on June 27, 2003.�
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 Commission determines that the agency complied with the settlement
agreement. While the agreement provides that the agency shall
reevaluate complainant �no later than 48 hours after receiving [any
narratives from complainant],� the record reflects that complainant was
reevaluated more than 48 hours after the agency received her narratives.
The record contains a copy of a memorandum from the Director, Accounts
Management Center, Kansas City dated June 30, 2003. Therein, the
Director asserts that complainant stated she gave her manager a copy of
the items to be considered in the revised evaluation �within 24 hours
of receiving the signed settlement agreement.� The memorandum further
provides that �[a named agency manager], [A1], contacted [complainant]
directly and requested a copy of the information she had previously
submitted for consideration in the revised evaluation. Upon receipt
of the information, ...[A1] reviewed [complainant's] submission and
completed the revised evaluation. The revised evaluation was discussed
with [complainant] on June 27, 2003.� Furthermore, the record contains
a copy of an evaluation for complainant signed by her on June 27, 2003.
The failure to satisfy a time fame specified in a settlement agreement
does not prevent a finding of substantial compliance of its terms.
Lazarte v. Department of the Interior, EEOC Appeal No. 01954274 (April
25, 1996). While there was a delay in issuing the revised evaluation,
complainant has not shown that she was harmed by the delay.
Accordingly, the agency's decision finding 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
3/31/2004
Date