0120102592
06-06-2012
Nossie D. Robinson, Complainant, v. Tom J. Vilsack, Secretary, Department of Agriculture, Agency.
Nossie D. Robinson,
Complainant,
v.
Tom J. Vilsack,
Secretary,
Department of Agriculture,
Agency.
Appeal No. 0120102592
Agency No. CRSD-2007-00450
DECISION
Complainant filed an appeal with this Commission claiming that the Agency is in breach of a settlement agreement, dated August 5, 2009.
BACKGROUND
At the relevant time, Complainant worked as an Information Technology Specialist at the Agency's Washington, D.C. facility. Believing that the Agency subjected her to unlawful discrimination, Complainant contacted an Agency EEO Counselor to initiate the EEO complaint process. On August 5, 2009, Complainant and the Agency entered into a settlement agreement to resolve the matter. The settlement agreement provided, in pertinent part, that the Agency would:
(1) Change Complainant's performance ratings to Superior for the fiscal year 2007 and change fiscal year 2008 mid-year to meeting superior performance; and
(2) Expunge the Complainant's Official Personnel File of any negative documents relating to the matters raised in the above referenced complaint and expunge any Employee Relations File regarding the Complainant, that may exist, by removing all reference to the matters that are the subject of, or relate to, the issues raised in the above referenced complaints [sic] and give her an opportunity to review the file and provide a letter rebutting any matters in the file that are not removed. Such rebuttal letter will become a permanent part of the file for as long as the file exists.1
Complainant contacted the Agency on numerous occasions alleging that it was in breach of the settlement agreement and requested that the Agency specifically implement its terms. When Complainant did not receive a decision from the Agency on her breach allegation, she filed the instant appeal. On appeal, Complainant alleged that the Agency failed to change her performance appraisals, and failed to expunge the negative documents, expunge her employee relations file, or provide her the opportunity to review the file and submit a rebuttal letter. Complainant also alleged that the Agency failed to provide her with a copy of her SF-50 and her final performance rating, and failed to comply with an oral agreement to provide her with a position.
In its brief in response to Complainant's appeal, the Agency states that it has substantially complied with all provisions of the August 5, 2009 settlement agreement. Specifically, the Agency states that, with respect to (1), Complainant's fiscal year 2007 rating was changed to "Superior" on July 28, 2010, but that mid-year appraisals are not reduced to writing but are, instead, meetings between an employee and supervisor. As such, the Agency states that this portion of the settlement agreement is not enforceable. With respect to (2), the Agency states that its Labor/Employment Relations and Litigation Branch completed its review of Complainant's personnel and employee relations files, and that a compliance letter was sent to Complainant on August 6, 2010, informing her that the negative references had been expunged and offering her the opportunity to review the files. The Agency acknowledges that it did not comply with these provisions until after Complainant alleged breach, but contends that the delay was due to a "complete overhaul" of the division charged with those duties.
Finally, the Agency states that there is no provision in the settlement agreement addressing Complainant's SF-50, final performance rating, or offer of a position. As such, the Agency argues that those allegations are outside the scope of the instant appeal. In response, Complainant acknowledges that the Agency provided her with access to her personnel files.
ANALYSIS AND FINDINGS
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. Dep't of Def., 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. Dep't 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. U.S. Postal Serv., 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, we find that the Agency has substantially complied with the terms of the settlement agreement. The record contains a copy of Complainant's 2007 performance appraisal which indicates that her rating was changed to "Superior" and a letter, dated August 6, 2010, providing her the opportunity to review her personnel and employee relations files and to submit a letter rebutting any documents in the files that were not removed. As such, we find that despite the delay, the Agency has ultimately complied with the terms of the settlement agreement. Complainant does not contest the Agency's assertion that the mid-year appraisals are meetings that are not reduced to writing and thus this portion of the agreement regarding the mid-year agreement is unenforceable. We also find that although Complainant contends that the Agency is obligated to provide her with a copy of her SF-50 and her final performance rating, those matters were not addressed in the settlement agreement at issue and are not, therefore, evidence of breach. Finally, with respect to Complainant's contention that the Agency made an oral agreement to offer her a position, we note that the language of the agreement specifically states that "there are no other agreements between The Parties [sic], either expressed or implied, oral or written." We find that if Complainant wanted the job offer to be part of the settlement agreement at issue, it should have been reduced to writing as a provision in the settlement agreement.
CONCLUSION
Accordingly, we find that the Agency is not in breach of the settlement agreement.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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 77960, Washington, DC 20013. 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 (S0610)
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 (Z0610)
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 from the Court that the Court appoint an attorney to represent you and that the Court also 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 with the Court 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
June 6, 2012
__________________
Date
1 The settlement agreement also provided that the Agency would pay Complainant $235,000.00 in compensatory damages and $50,000.00 in attorney's fees. Complainant does not allege that the Agency breached these provisions.
---------------
------------------------------------------------------------
---------------
------------------------------------------------------------
2
0120102592
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120102592