01976944
10-19-1998
Viola E. Stewart, Appellant, v. William S. Cohen, Secretary, Department of Defense, (Defense Logistics Agency), Agency.
Viola E. Stewart, )
Appellant, )
)
)
v. ) Appeal No. 01976944
)
)
William S. Cohen, )
Secretary, )
Department of Defense, )
(Defense Logistics Agency), )
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 March 21, 1995, appellant filed an informal
complaint. Thereafter, on April 18, 1995, appellant and the agency
settled the informal complaint. The settlement agreement provided,
in pertinent part, that:
Appellant's supervisor would refrain from discussing business related
matters with her publicly in front of other employees or in front of
customers; the supervisor would advise all employees in the office when
she would be acting for someone else; the supervisor also would ensure
that appellant would be rotated as acting supervisor for the Distribution
Branch Chief; and management would be committed to ensuring that the
work environment is free of intimidation and ridicule from coworkers.
On June 2 and 22, 1995, appellant contacted the agency alleging that the
agency breached the settlement agreement. Appellant indicated that she
had not been rotated into the acting supervisory duties; her coworkers
did not treat her with decency and respect; her coworker made her look
bad by putting a supervisor on hold for 10 minutes making it seem as
if appellant was inefficient; and management did not take appropriate
action against a coworker who threw a box of doughnuts at her.
On August 26, 1997, the agency issued its decision finding no breach
of the settlement agreement. The agency stated that it did not breach
the settlement agreement when appellant was not appointed as acting
Distribution Branch Chief after the settlement agreement. Specifically,
the agency indicated that although the Distribution Branch Chief was on
annual/sick leave from April 18, 1995, to May 30, 1995, there were no
appointments made as acting Distribution Branch Chief during that time,
therefore, there was no opportunity for appellant to act as Branch
Chief. The agency also indicated that appellant was on compensation
leave effective May 30, 1995, and did not return to work at the agency
thereafter. With regard to the incidents concerning working conditions,
the agency stated that these incidents were allegations of discrimination
which should be processed as a new complaint.
On appeal, appellant does not raise any new contentions.
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
rotate appellant as acting Distribution Branch Chief. After a review
of the record, we find that from the time of the settlement agreement
on April 18, 1995, until appellant's compensation leave on May 30, 1995,
no appointments were made to the position of acting Distribution Branch
Chief. The record also indicates that since her compensation leave,
appellant did not return to work at the agency. Based on the foregoing,
we find that the agency did not breach the terms of the settlement
agreement when appellant was not appointed as acting Distribution
Branch Chief.
With regard to the incidents concerning purported mistreatment from
appellant's coworkers, we find that these incidents are new incidents
which occurred after the settlement agreement. We note that although
the settlement agreement provides management's commitment to ensuring that
the work environment is free of intimidation and ridicule from coworkers,
appellant has provided no evidence that the alleged actions on the part
of her coworkers were the result of management's actions or inactions
regarding her work environment. We also note that the agency, in its
decision, stated that these matters were accepted as a separate complaint
which would be processed accordingly. See 29 C.F.R. �1614.504(c);
see also Anthony v. Department of Education, EEOC Request No. 05910142
(April 18, 1991). Therefore, we find that the agency has not breached
the settlement agreement.
CONCLUSION
Accordingly, the agency's decision finding no breach of the settlement
agreement is AFFIRMED.
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 (S0993)
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. 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 (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:
Oct. 19, 1998
DATE Ronnie Blumenthal, Director
Office of Federal Operations