01973880
02-26-1999
Nancy O. Geehan, Appellant, v. Daniel R. Glickman, Secretary, Department of Agriculture, Agency.
Nancy O. Geehan v. Department of Agriculture
01973880
February 26, 1999
Nancy O. Geehan, )
Appellant, )
)
v. ) Appeal No. 01973880
) Agency No. 930726
Daniel R. Glickman, )
Secretary, )
Department of Agriculture, )
Agency. )
______________________________)
DECISION
INTRODUCTION
Appellant timely appealed the agency's final decision not to reinstate
her complaint of unlawful employment discrimination that the parties
had settled. See 29 C.F.R. ��1614.504, .402(a); EEOC Order No. 960,
as amended.
ISSUE PRESENTED
The issue on appeal is whether the agency breached a settlement
agreement.
BACKGROUND
The record indicates that on April 11, 1994, the parties entered into
a settlement agreement resolving appellant's complaint, which provided,
in pertinent part, that:
The agency agrees to immediately work with the Director of the National
Finance Center (NFC) to request an expedited decision from the Comptroller
General regarding the $1200 transfer of station expenditure. If the
decision is not favorable, either in whole or in part, the agency agrees
to request and favorably recommend to the Secretary of the agency that
the debt outstanding to the Forest Service (FS) be waived.
Thereafter, appellant alleged that the agency breached the settlement
agreement.
The record indicates that appellant and her former husband, who were both
employed by the agency, transferred from Atlanta, Georgia, to Washington,
D.C, in the spring of 1993. Both of them claimed their relocation
expenses to the agency, including $700 miscellaneous expense allowance
that might be claimed without itemized receipts under the Federal Travel
Regulations.
By letters dated February 14, 1996, and February 12, 1997, the agency
stated that it complied with the terms of the settlement agreement.
The agency stated that the NFC asked the Comptroller General for an
opinion regarding the $1200 transfer of station expenditure. On May 23,
1994, the Comptroller General issued a decision that both appellant
and her former spouse were not allowed to claim $700 miscellaneous
expense since such payment would constitute a duplicate payment which
was prohibited by the Federal Travel Regulations. The agency indicated
that on December 9, 1993, appellant's former spouse was reimbursed
for $5681.11, which included the subject $700 miscellaneous expense,
for the relocation expenses and on February 1, 1994, appellant was
reimbursed for $3990.58, which excluded the $700 miscellaneous expense.
The agency asserted that since appellant was reimbursed for all expenses
allowed by regulations for her transfer of station, the agency complied
with the terms of the settlement agreement as there was no outstanding
debt owed to the FS. Finally, the agency stated that since the decisions
of the Comptroller General were final and not subject to further review
by any other agency of the Federal Government, the FS could not ask its
Secretary to do something for which he had no legal authority, i.e., by
granting a waiver from a Comptroller General decision to pay appellant
the $700 miscellaneous expense, which eventually led to the outstanding
travel advance.
On appeal, appellant indicates that $779.58 of her wages were
garnished/removed without notice from her last agency paycheck of 1996,
as a result of the agency's disallowance of her travel expenses.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. �1614.504 provides that if the complainant
believes that the agency failed to comply with the terms of a settlement
agreement, the complainant should notify the Director of Equal Employment
Opportunity, in writing, of the alleged noncompliance with the settlement
agreement, within thirty (30) days of when the complainant knew or should
have known of the alleged noncompliance. The complainant may request that
the terms of the settlement agreement be specifically implemented or,
alternatively, that the complaint be reinstated for further processing
from the point processing ceased.
The agency shall resolve the matter and respond to the complainant,
in writing. If the agency has not responded to the complainant, in
writing, or if the complainant is not satisfied with the agency's attempt
to resolve the matter, the complainant may appeal to the Commission for
a determination as to whether the agency has complied with the terms of
the settlement agreement or final decision.
The Commission has held that settlement agreements are contracts between
the appellant and the agency and it is the intent of the parties as
expressed in the contract, and not some unexpressed intention, that
controls the contract's construction. Eggleston v. Department of Veterans
Affairs, EEOC Request No. 05900795 (August 23, 1990). In addition, the
Commission generally follows the rule that if a 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 v. Building Engineering Services,
730 F.2d 377 (5th Cir. 1984). The Commission has followed this rule
when interpreting settlement agreements. The Commission's policy in
this regard is based on the premise that the face of the agreement best
reflects the understanding of the parties.
A review of the settlement agreement reveals that the agency agreed
to work with the Director of the NFC to request an expedited decision
from the Comptroller General regarding the $1200 transfer of station
expenditure. The record indicates that on May 23, 1994, the agency
Comptroller General issued a decision disallowing $700 of the $1200
transfer of station expenditure, which led to appellant's outstanding
travel advance. The settlement agreement further provides that if the
Comptroller General decision is not favorable, either in whole or in part,
the agency agrees to request and favorably recommend to the Secretary
of the agency that the debt outstanding to the Forest Service (FS)
be waived. The agency stated that it did not request or recommend to
the Secretary of the agency that appellant's outstanding debt be waived.
On appeal, appellant asserts that the agency breached the settlement
agreement since $779.58 of her wages were garnished from her last agency
pay check of 1996. We note that while the settlement agreement did not
guarantee reimbursement of the $1200 transfer of station expenditure,
it did provide that the agency would make a request/recommendation to its
Secretary for a waiver of any debt found owing to the agency. The agency
acknowledged failing to request such a waiver and, consequently, we find
that the agency breached the settlement agreement.
CONCLUSION
Accordingly, the agency's decision finding no breach of the settlement
agreement is REVERSED and the case is REMANDED to the agency for
implementation of the agreement.
ORDER
The agency is ORDERED to specifically enforce the April 14, 1994
agreement. The agency shall, within thirty (30) calendar days of the
date this decision becomes final, to request and favorably recommend to
the Secretary of the agency that the monies found due from appellant,
as described in this decision, be waived. The agency shall provide
documentation of the specific enforcement of the subject agreement to
the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0595)
Compliance with the Commission's corrective action is mandatory. The
agency shall submit its compliance report within thirty (30) calendar
days of the completion of all ordered corrective action. The report
shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the appellant. If the agency does not comply with the Commission's
order, the appellant may petition the Commission for enforcement of
the order. 29 C.F.R. �1614.503(a). The appellant also has the right
to file a civil action to enforce compliance with the Commission's
order prior to or following an administrative petition for enforcement.
See 29 C.F.R. ��1614.408, 1614.409, and 1614.503(g). Alternatively,
the appellant has the right to file a civil action on the underlying
complaint in accordance with the paragraph below entitled "Right to File
A Civil Action." 29 C.F.R. ��1614.408 and 1614.409. A civil action for
enforcement or a civil action on the underlying complaint is subject to
the deadline stated in 42 U.S.C. �2000e-16(c) (Supp. V 1993). If the
appellant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. �1614.410.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (R0993)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court. It is the position of the Commission that 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. You should be aware, however, that courts in some
jurisdictions have interpreted the Civil Rights Act of 1991 in a manner
suggesting that a civil action must be filed WITHIN THIRTY (30) CALENDAR
DAYS from the date that you receive this decision. To ensure that your
civil action is considered timely, you are advised to file it WITHIN
THIRTY (30) CALENDAR DAYS from the date that you receive this decision
or to consult an attorney concerning the applicable time period in the
jurisdiction in which your action would be filed. In the alternative,
you may file a civil action AFTER ONE HUNDRED AND EIGHTY (180) CALENDAR
DAYS of the date you filed your complaint with the agency, or filed your
appeal with the Commission. 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.
Filing a civil action will terminate the administrative processing of
your complaint.
RIGHT TO REQUEST COUNSEL (Z1092)
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:
Feb 26, 1999
DATE Ronnie Blumenthal, Director
Office of Federal Operations