01a54576
10-07-2005
Rachelle Nealey, Complainant, v. Jo Anne B. Barnhart, Commissioner, Social Security Administration, Agency.
Rachelle Nealey v. Social Security Administration
01A54576
October 7, 2005
.
Rachelle Nealey,
Complainant,
v.
Jo Anne B. Barnhart,
Commissioner,
Social Security Administration,
Agency.
Appeal No. 01A54576
Agency No. 00-0193-SSA
DECISION
In the instant appeal, dated June 15, 2005<1>, complainant alleged
that the agency breached the terms of the October 9, 2002 settlement
agreement into which the parties 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 the agency
agrees to:
(1) Remove complainant's Sick Leave Restriction;
(2) Follow a liberal leave policy with respect to sick leave, including
advanced sick leave; and
(3) Immediately remove memoranda dated September 17, 1999, and October
13, 1999, from complainant's SF-7B File.
The settlement agreement also provided, in paragraph 3, that �complainant
is assured that she will not be intimidated or harassed for having filed
this complaint. If any incident or action is perceived by complainant
to be reprisal or harassment, she has the right to pursue the matter as
set forth in EEOC Regulations, Sections 1614.103 and 1614.104.�
By letter to the agency dated June 14, 2005, complainant alleged that
the agency was in breach of the settlement agreement, and requested
that the agency reinstate the underlying complaint. Specifically,
complainant alleged that she has been subjected to ongoing harassment
since late 2002/early 2003. Complainant also alleged that item (2)
of the agreement was violated when she received a March 14, 2005 Leave
Counseling memorandum.
In its July 29, 2005 FAD, the agency found that none of complainant's
leave requests had been denied but she was given notice that a
satisfactory explanation would be required for future leave requests.
Specifically, the agency found that the memorandum at issue merely points
out the conditions under which complainant's future leave requests would
be approved and also included information about complainant's potential
eligibility for sick leave under the Family Medical Leave Act. The agency
also found that complainant's supervisor (S1) advised complainant that
her pattern of leave usage was a concern because as of March 14, 2005,
complainant had a negative sick leave balance of 218.45 hours and used
20.75 hours of leave without pay (in 2004 complainant used 300.75 hours
of leave without pay). The agency concluded that the memorandum did
not violate the settlement agreement.
The agency further found that complainant's allegations of �ongoing
harassment� constituted subsequent acts initiated after the execution
of the settlement agreement, and for that reason it cannot be found that
the agreement was violated in this regard. Therefore, the agency advised
complainant to seek counseling and initiate a new complaint process.
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).
With respect to complainant's allegation that the agency breached the
settlement agreement (item 2) when she received a Leave Counseling
memorandum, we find that the agency has not breached the settlement
agreement. Specifically, we find that management provided complainant
a liberal leave policy and granted complainant advanced sick leave.
As stated above, the record reveals that complainant had a negative sick
leave balance of 218.45 hours, which clearly showed that complainant
was allowed liberal sick leave and to take advanced sick leave. We also
find that nothing in the agreement precluded management from counseling
complainant regarding her sick leave. Moreover, we find that complainant
did not have any more sick leave available, and under the plain meaning
rule articulated above, we cannot conclude that the agency breached the
settlement agreement when counseling complainant after she exhausted
all sick leave available.
Complainant contends that she was subjected to an ongoing harassment
and retaliation for filing the above EEO complaint, in violation of the
settlement agreement. Pursuant to 29 C.F.R. � 1614.504(c), allegations
that subsequent acts of discrimination violated the settlement agreement
shall be processed as separate complaints. We note that complainant's
allegations of harassment and retaliation by S1 constituted claims of
subsequent acts of discrimination. Therefore, if complainant desires
to pursue these separate claims through the EEO process, she is advised
to initiate contact with an EEO Counselor thereon.
Accordingly, the agency's finding of no breach of the October 9, 2002
settlement agreement was proper and is hereby 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").
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
October 7, 2005
Date
1The record reveals that complainant appealed
to the Commission before the agency's decision dated July 29, 2005 finding
that it was in compliance with the terms of the settlement agreement.