0120080229
03-28-2008
Anita J. Graddick, Complainant, v. Michael W. Wynne, Secretary, Department of the Air Force, Agency.
Anita J. Graddick,
Complainant,
v.
Michael W. Wynne,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 0120080229
Agency No. 9R1M07062
DECISION
Complainant filed a timely appeal with this Commission from a final
decision (FAD) by the agency dated September 7, 2007, finding that it was
in compliance with the terms of the April 24, 2007 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:
[Named individual] agrees to initiate action within 30 days of the
signing of this agreement to arrange a meeting for [complainant] along
with her representative, a 561 AMXS/MXACA management representative,
a representative from the worker's compensation office, and other
representatives from appropriate offices as necessary to review the
complainant's TAA historical records beginning in June 2004 through
February 2007 for possible coding errors. Further, [named individual]
agrees to investigate the happenings of the meeting held in February 2007
in the 561 AMSX/MSACA flight chief's office, the allegations concerning
overtime denial in the panel shop (April 2006 - July 2006) and in the
FOM cage (October 2006 to February 2007), and allegations concerning
two supervisors who allegedly ordered [complainant] to perform tasks
outside of her limitations with warnings that if she didn't she could
possibly be removed. All actions will be completed within 90 days.
In correspondence to the agency, complainant alleged that the agency was
in breach of the settlement agreement, and requested that the agency
specifically implement its terms. Specifically, complainant alleged
that the agency failed to fulfill its obligations under the agreement
to correct errors regarding time and attendance and to allow complainant
to work overtime.
In its September 7, 2007 FAD, the agency concluded that it complied with
the specific terms of the agreement between the parties. The agency
indicated in its final decision that on August 21, 2007 a meeting with
complainant, her representative and other agency representatives was
held to inform complainant of the time and attendance corrections which
had been made.1 The agency further indicated in its final decision that
complainant's claims of denial of overtime were investigated and were
not substantiated.
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 find that complainant has failed to demonstrate
that the agency breached the agreement as alleged. The agency has
provided evidence that it corrected coding errors to complainant's time
and attendance. In addition, the Commission notes that the April 24, 2007
agreement between the parties requires the agency to simply to investigate
complainant's claims that she was denied overtime. The agreement does
not require the agency to provide complainant with overtime. The agency's
determination that complainant was not provided overtime because there was
no requirement for overtime in the area in which complainant was employed,
fulfills the agency's obligation under the agreement to investigate
complainant's claims overtime claims. Based on a review of the record,
the Commission finds that complainant has failed to establish that the
agency breached the April 24, 2007 agreement as alleged.
Accordingly, the agency's determination that it complied with the
agreement is affirmed for the reasons set forth herein.
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").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
March 28, 2008
__________________
Date
1 The agency has provided the Commission with copies of coding corrections
to complainant's time and attendance records.
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0120080229
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120080229