Rachelle Nealey, Complainant,v.Jo Anne B. Barnhart, Commissioner, Social Security Administration, Agency.

Equal Employment Opportunity CommissionOct 7, 2005
01a54576 (E.E.O.C. Oct. 7, 2005)

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.