Teresa G. Noonan, Appellant,v.Robert E. Rubin, Secretary, Department of the Treasury, Internal Revenue Service, Agency.

Equal Employment Opportunity CommissionNov 13, 1998
05970506 (E.E.O.C. Nov. 13, 1998)

05970506

11-13-1998

Teresa G. Noonan, Appellant, v. Robert E. Rubin, Secretary, Department of the Treasury, Internal Revenue Service, Agency.


Teresa G. Noonan v. Department of the Treasury

05970506

November 13, 1998

Teresa G. Noonan, )

Appellant, )

)

v. ) Request No. 05970506

) Appeal No. 01964414

Robert E. Rubin, ) Agency No. TD 94-3140

Secretary, )

Department of the Treasury, )

Internal Revenue Service, )

Agency. )

___________________________________)

DECISION ON REQUEST FOR RECONSIDERATION

INTRODUCTION

On February 21, 1997, the agency timely initiated a request to the Equal

Employment Opportunity Commission to reconsider the decision in Teresa

G. Noonan v. Robert E. Rubin, Secretary, Department of the Treasury -

Internal Revenue Service, EEOC Appeal No. 01964414 (January 15, 1997),

which it received on January 22, 1997. EEOC Regulations provide that

the Commissioners may, in their discretion, reconsider any previous

Commission decision. 29 C.F.R. �1614.407(a). The party requesting

reconsideration must submit written argument or evidence which tends to

establish one or more of the following three criteria: new and material

evidence is available that was not readily available when the previous

decision was issued, 29 C.F.R. �1614.407(c)(1); the previous decision

involved an erroneous interpretation of law, regulation or material fact,

or misapplication of established policy, 29 C.F.R. �1614.407(c)(2);

and the previous decision is of such exceptional nature as to have

substantial precedential implications, 29 C.F.R. �1614.407(c)(3). For

the reasons below, the Commission grants the agency's request.

ISSUE PRESENTED

Whether the agency breached a settlement agreement with appellant.

BACKGROUND

The agency employed appellant as an examiner in its Manhattan district

office, examination branch 2. She filed a complaint in which she

alleged that, in January 1994, her group manager and the branch 2 chief

discriminated against her on the basis of national origin (Columbian) by

not certifying her as ready to hold a managerial position. The parties

entered into a settlement agreement on August 16, 1995, the pertinent

provision of which stated:

The agency agrees that within six months of the execution of this

settlement agreement, [appellant] will be placed on a two-month detail

to an acting managerial position at the agency's Manhattan district

office in either a group within an examination division branch other

than branch 2 or in the training group of examination division branch

2. [Appellant's] performance while on the detail will be valuated at

the end of the detail.

In accordance with this provision of the settlement agreement, appellant

was placed in an acting group manager position within Manhattan district

office examination branch 3. The detail lasted from January 22 to March

22, 1996. On April 11, 1996, she was given feedback by her immediate

supervisor, the branch 3 chief.

By letter dated April 22, 1996, appellant notified the agency that it

had breached the settlement agreement. She alleged that the branch

2 chief, who in June 1994 had been promoted to assistant division

chief, was present at a January 18, 1996 meeting when the branch 3

chief outlined his expectations for her performance in the detail.

Appellant maintained that the presence of the former branch 2 chief at

that January 1996 meeting presented a conflict of interest, since the

former branch 2 chief was named in appellant's complaint. She further

asserted that the unfavorable evaluation she received at the end of the

detail also violated the agreement. The agency issued a final decision

finding that it had not breached the settlement agreement.

The previous decision found that the agency violated the above provision

of the settlement agreement by assigning appellant to a branch under the

former branch 2 chief's line of authority as the assistant division chief.

The previous decision stated that, even though the agreement did not

explicitly provide that appellant would not be assigned to another

branch where the former branch 2 chief might play a supervisory role,

the parties intent in excluding appellant's assignment to branch 2 was

to avoid continuing the same conflict with the former branch 2 chief.

ANALYSIS AND FINDINGS

The previous decision correctly points out that when the provisions

of the settlement agreement are unambiguous, the meaning of those

provisions is derived from the four corners of the document, without

resort to extrinsic evidence. Klein v. Department of Housing and

Urban Development, EEOC Request No. 05940033 (June 30, 1994); Brown

v. Department of Commerce, EEOC Request No. 05921059 (June 24, 1993).

In this case, the settlement provision at issue required the agency to

place appellant into a two-month detail to a managerial position within

6 months of the execution of the agreement, and to evaluate appellant's

performance at the end of the detail. Appellant does not contest that

the agency carried out all of the steps required of it by this provision.

We find that the previous decision erred in finding that the agency

breached the agreement. The former branch 2 chief had managerial

responsibilities which covered the entire examination division. Appellant

was well aware of this since the former branch 2 chief was promoted into

her current position in June 1994, over a year before the settlement

agreement was entered into. Appellant was therefore fully aware

that she would have been within the former branch 2 chief's line of

authority regardless of what branch she was assigned to. Moreover,

although appellant's detail was in a branch within the examination,

the former branch 2 chief was not personally involved in the supervision

of appellant during her acting managerial detail. She was likewise not

involved in providing any feedback to appellant relating to the detail

or in evaluating her performance in the detail. Thus, the conflict

of interest claim which underlies appellant's breach allegation is

unsupported by the record.

Finally, we note that appellant did not raise objections to the former

branch 2 chief's presence at the January orientation meeting before her

detail commenced. Appellant filed her breach allegation only after

she received an unfavorable performance evaluation from the branch

3 chief. Appellant's unhappiness with the outcome of her performance is

insufficient cause to nullify a valid settlement agreement. We therefore

find that the agency fully and properly complied with the settlement

agreement provision at issue.

CONCLUSION

After a review of the agency's request for reconsideration, appellant's

response, the previous decision, and the entire record, the Commission

finds the agency's request meets the criteria of 29 C.F.R. �1614.407(c),

and it is the decision of the Commission to grant the agency's request.

The decision of the Commission in Appeal No. 01964414, finding that

the agency breached the settlement agreement entered into on August 16,

1995, is reversed, and the order set forth in that decision is rescinded.

There is no further right of administrative appeal from a decision of

the Commission on a request for reconsideration.

RIGHT TO FILE A CIVIL ACTION (P0993)

This decision of the Commission is final, and there is no further right of

administrative appeal from the Commission's decision. You have the right

to file a civil 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. 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.

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:

NOV 13, 1998

_______________ ______________________________

Date Frances M. Hart

Executive Officer

Executive Secretariat