0120091970
08-27-2009
Andrea M. Tucker, Complainant, v. Timothy F. Geithner, Secretary, Department of the Treasury, Agency.
Andrea M. Tucker,
Complainant,
v.
Timothy F. Geithner,
Secretary,
Department of the Treasury,
Agency.
Appeal No. 0120091970
Agency No. IRS-08-0621
DECISION
Complainant filed a timely appeal with this Commission from a final
agency decision dated March 5, 2009, finding that it was in compliance
with the terms of the August 29, 2008 settlement agreement into which
the parties entered. See 29 C.F.R. �� 1614.402; 1614.405 & 1614.504(b).
The settlement agreement provided, in pertinent part, that:
(a) No later than September 15, 2008, Territory Manager will initiate
paperwork to reassign [complainant] to Small Business/Self Employed,
Collection, Califomia Santa Ana, Group 36. [Complainant] will take the
inventory assigned to her as of August 29, 2008 to the new group.
(b) No later than September 15, 2008 prepare a departure Rating
showing an overall rating of 3.8.
By letter to the agency dated October 10, 2008, complainant alleged
that the agency was in breach of the settlement agreement, and requested
that the agency reinstate her underlying EEO complaint. Specifically,
complainant alleged that her requests for case approval and closure were
inappropriately routed to her former group manager (S1), instead of her
new manager, and S1 disapproved them. Further, complainant stated that
S1 had improper authority to assign her cases until October 3, 2008 and
to review her trust fund cases through November 13, 2008, although she
requested a transfer of said authority under the settlement agreement.
In its March 5, 2009 final decision, the agency found that it is in at
least substantial compliance with the August 29 agreement. The agency
stated that, about September 15, complainant was assigned to another group
and that S1 was unaware that he had to take action to prevent the case
computer system from forwarding complainant's work to him. The agency
stated that S1 generally ignored the prompts to review complainant's
work except once, on September 26, 2008, when he disapproved her case
for lack of important information. Complainant's new supervisor (S2)
stated that she is aware of only two cases that S1 assigned complainant
and that was on September 2 because the cases were originally assigned
to complainant and then temporarily assigned to another Revenue Officer.
Further, the agency stated that complainant failed to show that routing
to S1 after her September 15 reassignment to S2's group was anything but
inadvertent and or that it negatively affected her. The agency stated
that it complied with the plain language of the agreement. The instant
appeal from complainant followed.
On appeal, complainant stated that S1 continued to act as her supervisor
beyond September 15, 2008 and that any concerns he held regarding her
cases should have been directed at S2 rather than disapproved.
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).
In the instant case, we agree with the agency and find that, based on
"the plain meaning rule," complainant has failed to establish that the
agency breached the August 29 agreement. Specifically, we find that
complainant's contentions suggest that she is unhappy with the agreement
as written and seeks to adjust its terms. The agreement states that the
Territory Manager will initiate reassignment paperwork on September 15,
2008 and that complainant will take the inventory she has as of August 29
to her new group. The agreement does not address the actions complainant
alleged. Her allegations are new matters and she is advised to contact
an EEO Counselor if she wishes to pursue them through the EEO process.
We AFFIRM the final agency decision finding compliance.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 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 (S0408)
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 (Z1008)
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
August 27, 2009
__________________
Date
2
0120091970
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
4
0120091970