Beverly A. Gulvas, Complainant,v.Mike Johanns, Secretary, Department of Agriculture, Agency.

Equal Employment Opportunity CommissionMay 25, 2007
0120061773 (E.E.O.C. May. 25, 2007)

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