0120083109
11-10-2008
Arnetta V. Courtney, Complainant, v. Michael O Leavitt, Secretary, Department of Health and Human Services, Agency.
Arnetta V. Courtney,
Complainant,
v.
Michael O Leavitt,
Secretary,
Department of Health and Human Services,
Agency.
Appeal No. 0120083109
Agency No. HHSFDACBER02508
DECISION
Complainant filed a timely appeal with this Commission from a final
decision (FAD) by the agency dated June 11, 2008, finding that it was
in compliance with the terms of the March 10, 2008 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.
At the time of the alleged breach, complainant was a GS-13 Program Liaison
for Commission Corps Officers at the Food and Drug Administration's Center
for Biologics Evaluation and Research (CBER). She had previously filed
an EEO complaint, which resulted in the settlement agreement at issue.
The March 10, 2008 settlement agreement provided, in pertinent part,
that:
Management agrees to allow complainant the opportunity to work with
the Center for Biologics Evaluation and Research (CBER) Recruitment
Coordinator to incorporate Commission Corps at job fairs, recruitment
initiative.
By brief letter to the agency dated April 28, 2008, 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 by not allowing her to travel outside the local
area for recruitment of Commission Corps personnel, the agency is in
non-compliance with the settlement agreement. It appears, although not
altogether clear, that complainant's request to go on a recruitment trip
on official travel to San Diego, California was denied.
In its June 11, 2008 FAD, the agency found no breach had occurred and
supported its finding with statements from several management officials.
The Program Service Branch Chief, who is complainant's immediate
supervisor, stated that complainant had the opportunity to participate
in several Commission Corps job fairs and recruitment initiatives in the
Washington Metro area, including: John Hopkins University (April 16,
2008), Bio Space Career Fair (April 17, 2008), Georgetown University
(April 9, 2008), and Blood Products Advisory Committee meeting (May
1-2, 2008). The Branch Chief also indicated that complainant stated
no interest in the recruitment initiative for Memphis, TN (May 15-17,
2008), or Boston, MA (June 1-5, 2008).
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).
On appeal, complainant has submitted no further explanation of her breach
claim. She also has not contested the facts as presented by the agency in
its FAD. Based on the record as presented by the agency, the Commission
finds that complainant has not shown that the agency has breached the
settlement agreement provision at issue. The agreement was signed in
March 2008, and the record indicates that complainant participated in
a number of job fairs and other recruitment activities in April and May
2008, as well as apparently indicating no interest in participating in
recruitment activities in Memphis and Boston in May-June 2008. The plain
language of the agreement provides that complainant will be permitted to
work with the recruiter at job fairs and other recruitment activities.
The agency has complied with this provision. Nowhere does it state that
complainant is entitled to attend any particular event, or that she is
entitled to attend events that require official travel.
Accordingly, the agency's final decision finding no settlement breach
is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0408)
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 (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 (Z0408)
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
November 10, 2008
__________________
Date
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0120083109
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120083109