01996964_r
09-07-2001
Babette L. Wilkerson, Complainant, v. Dr. James G. Roche, Secretary, Department of the Air Force, Agency.
Babette L. Wilkerson v. Department of the Air Force
01996964
September 7, 2001
.
Babette L. Wilkerson,
Complainant,
v.
Dr. James G. Roche,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 01996964
Agency No. SAN97AFO235E
Hearing No. 270-97-9156X
DECISION
Complainant filed a timely appeal with this Commission from a final
decision (FAD) by the agency dated September 1, 1999, finding that it
was in compliance with the terms of the January 16, 1998 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 dated January 16, 1998, provided that the agency
would revise complainant's Civilian Performance and Promotion Appraisal
and pay her two-hundred dollars as a performance award.
The settlement agreement also provided, in pertinent part, that:
(1) The Agency promises that no Agency employee will retaliate or engage
in reprisal against the Complainant based upon the allegations Complainant
made which are the subject of this complaint and Settlement Agreement.
Neither will any Agency employee take any such reprisal action based upon
the fact that the Complainant lawfully availed herself of the Agency's
complaint process. To the contrary, any actions taken by Agency employees
(including Complainant's supervisors or other management officials)
regarding the Complainant will be based solely on the Complainant's
conduct and/or duty performance as an employee, to the full extent,
but only to the extent that such conduct and duty performance of the
Complainant may lawfully be the basis of any such actions by the Agency.
By letter to the agency dated August 10, 1999, complainant alleged that
the agency breached the settlement agreement, and requested that the
agency specifically implement its terms. Specifically, complainant
alleged that the agency engaged in retaliatory conduct when she was
questioned about an incident involving a government issued American
Express card; she was charged leave without pay (LWOP); and when her
computer privileges were suspended for forwarding an unapproved email.
In its September 1, 1999 FAD, the agency concluded that complainant had
not demonstrated that the agency breached the settlement agreement. The
agency concluded that complainant's claims in this matter involved
incidents which occurred after the parties entered into the instant
settlement agreement. The agency also indicated that any new claims of
reprisal discrimination should be handled as new complaints.
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 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).
A review of complainant's breach claim shows that she is raising new
incidents and that she believes that the agency has engaged in the
alleged conduct in reprisal for her settlement agreement. The agency
correctly acknowledged in its final decision that these new incidents
are more correctly handled as new complaints. The Commission has
repeatedly held that such claims should be raised as separate claims.
See Bindal v. Department of Veterans Affairs, EEOC Request No. 05900225
(August 9, 1990). Based on the foregoing, we find that the agency's
final decision finding no breach of the settlement agreement was proper
and it is hereby AFFIRMED.
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
September 7, 2001
__________________
Date