0120061773
05-25-2007
Beverly A. Gulvas, Complainant, v. Mike Johanns, Secretary, Department of Agriculture, Agency.
Beverly A. Gulvas,
Complainant,
v.
Mike Johanns,
Secretary,
Department of Agriculture,
Agency.
Appeal No. 0120061773
Agency No. 971333
DECISION
Complainant filed a timely appeal with this Commission from a final
decision (FAD) by the agency dated December 13, 2005, finding that it was
in compliance with the terms of the August 10, 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. In her underlying EEO complaint,
complainant alleged that the agency discriminated against her on the bases
of her age (May 10, 1947) and her disability (back and hip problems) in
violation of the the Age Discrimination in Employment Act of 1967 (ADEA),
as amended, 29 U.S.C. � 621 et seq., and Section 501 of the Rehabilitation
Act of 1973, as amended, 29 U.S.C. � 791 et seq., when she was terminated
from her position of Program Assistant, effective June 3, 1996.
The settlement agreement provided, in pertinent part, that:
(1) complainant agrees to waive reinstatement to employment by the
agency;
(2) complainant agrees to withdraw her EEO complaint(s) USDA
No. CR971333 with prejudice. The complainant further agrees to withdraw
any other formal or informal complaints concerning matters contained in
the above referenced complaint and agrees not to raise any new complaints
about issues in the above cited complaint;
(3) complainant hereby releases USDA, the agency, their employees and
officers in their official capacities from any and all claims relating
to the events that gave rise to the complaint(s) that are subject of
this agreement . . .; and
(4) Notwithstanding the provisions of paragraph [(3)] above,
the agency agrees to withdraw its opposition to complainant's pending
Worker's Compensation claim. . .
On July 19, 2004, 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 retain her time and attendance records in accordance with
regulations; that the Department of Labor (DOL), by letter dated May
11, 2004, indicated that it had satisfied her claim for compensation,
Form CA-7; and pre-authorization for an MRI on July 2, 2004 was delayed.
In its December 13, 2005 FAD, the agency concluded it did not breech the
settlement agreement. Specifically, the agency found that on January 20,
2001, complainant submitted Form CA-7, to DOL requesting compensation
for Leave Without Pay from October 20, 1993 to June 10, 2012 and for
Leave Buyback from October 20, 1993 to June 3, 1996. DOL informed
complainant that compensation was paid for the period of April 17, 1994
to January 1, 1995. Complainant was also compensated for 152 hours of
Leave Without Pay for the period of January 4, 1995 to March 4, 1996.
Complainant's request to buy back her leave for the period of October
20, 1993 to December 25, 1993 was denied by DOL. The agency determined
that the settlement agreement did not provide the option of buying back
leave used in 1993 but instead provided that the agency would withdraw
its opposition to complainant's pending Worker's Compensation claim.
The agency found that it did withdraw its opposition. Further, with
regard to the delayed pre-authorization for an MRI, the agency found
that it did not have jurisdiction to review this issue since there was
no provision in the settlement agreement pertaining to that issue.
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 argues that although the settlement agreement
did not explicitly provide for the option of buying back leave, any
leave recalculation falls under the provision of acceptance of the
workers compensation claim and Form CA-7. Complainant argues that the
denial by the agency for the complete CA-7 request is a breach of the
settlement agreement. Further, complainant argues that she provided
the agency copies of her time and attendance records which it failed
to retain. The Commission exercises its discretion to review only the
issue specifically raised in complainant's appeal. EEOC Management
Directive 110, November 9, 1999, 9-10 (EEO MD-110).
In the instant case, we find that the agency did not breach the settlement
agreement. In so finding, we note that complainant provides on appeal
that the agency withdrew its opposition to her Workers Compensation claim.
Further, the denial of complainant's request to buy back leave was issued
by DOL, not the agency in the instant case. Based on the plain meaning of
the terms in the settlement agreement, we find that the agency agreed only
to withdraw its opposition to her Worker's Compensation claim. As such,
we find that the DOL's decision to deny her request to buy back leave
cannot be construed as a violation of the settlement agreement. With
regard to complainant's allegation that the agency failed to retain her
records, we find that there is no provision in the settlement agreement
specific to the retention of her records nor is there any evidence to
show that its failure to do so violated any regulations or requirements.
As such, we find that complainant failed to establish that the agency
breached the terms of the settlement agreement as she alleged.
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
___5/25/07________________
Date
2
0120061773
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
4
0120061773