01A14297_r
06-11-2002
Carmalliticia K. Davis, Complainant, v. Thomas E. White, Secretary, Department of the Army, Agency.
Carmalliticia K. Davis v. Department of the Army
01A14297
June 11, 2002
.
Carmalliticia K. Davis,
Complainant,
v.
Thomas E. White,
Secretary,
Department of the Army,
Agency.
Appeal No. 01A14297
Agency No. BOEAFO0008A0810
DECISION
Complainant filed an appeal claiming that the settlement agreement
entered into between the parties had been breached.
The record reveals that on March 6, 2001, complainant and the agency
entered into a settlement agreement regarding the EEO complaint that had
been filed by complainant. The settlement provided, in pertinent part,
that in exchange for complainant voluntarily withdrawing her complaint,
the agency agreed as follows:
... the agency will restore to the complainant a total of not to
exceed 350 hours of leave, both sick and annual. This is contingent
upon complainant providing the agency within 14 calendar days of this
agreement, necessary documents to substantiate the restoration of the
amount of leave taken as a result of the absences involved in this
complaint. Upon receipt of the necessary documents, the agency will
submit the request for restoration within 14 calendar days....
By letter dated March 7, 2001, complainant informed the agency that she
wanted the settlement agreement set aside and her complaint reinstated.
Complainant claimed that she was coerced to enter into the settlement
agreement by the EEO mediator. According to complainant, the EEO
mediator told her that her case would be difficult to prove and that the
agency could support its selection decision in the promotion at issue.
Complainant stated that she decided not to pursue her complaint after the
EEO mediator picked apart her case and told her that she was not entitled
to compensatory damages. Complainant claimed that she was emotionally
distressed as she came to believe that going forward with her complaint
was not a viable option. By electronic message dated May 30, 2001,
the agency informed complainant that a reinstatement of the complaint
was not warranted. The agency stated that it needed information from
complainant regarding the hours that needed to be restored.
By letter dated May 30, 2001, complainant informed the agency that it
had breached the settlement agreement. Complainant stated that she
submitted to the agency within fourteen calendar days of execution of
the settlement the necessary documentation to substantiate restoration
of her leave, but that the agency had not submitted the request for
restoration of her leave. Complainant requested that her complaint
be reinstated. By letter dated June 5, 2001, complainant informed the
agency that during the mediation session she was on medication due to a
very recent surgery. Complainant stated that it was explained to her
that she could not go forward with her complaint because there was no
need to do so. According to complainant, she was told that she would
not gain more than what was being offered in the settlement agreement.
By electronic message to the agency dated June 12, 2001, complainant
stated that the parties were still bound under the settlement agreement
during the period in which the agency reviewed her withdrawal request.
Complainant denied that she granted the agency a delay in implementing
the settlement.
On appeal, complainant argues that the agency has not complied with the
settlement and that the settlement agreement should be set aside.
In response, the agency asserts that complainant was not coerced to enter
into the settlement agreement. The agency maintains that the mediator
did not misrepresent any facts to complainant. According to the agency,
the mediator was attempting to facilitate a settlement, in part, by
informing complainant of the proof difficulties inherent in obtaining
an award of compensatory damages. The agency asserts that complainant
has not alleged conduct on the part of the mediator that constitutes
coercion. In support of its position, the agency submits a statement
from the Director of the Southeast Civilian Personnel Operations Center,
Fort Benning Georgia. The Director states that he participated in the
mediation session and that the mediator pressed hard for the parties
to come to a resolution of the complaint. According to the Director,
complainant appeared to be confused as to whether she should resolve the
complaint. The Director further states that by the time the settlement
agreement was reached, complainant appeared to clearly understand the
contents of the agreement and she appeared to be entering into the
agreement voluntarily. With regard to complainant's claim of breach,
the agency asserts that complainant was told that the compliance action
was being held up pending a decision on whether the settlement would be
set aside, and that complainant never objected. The agency claims that
on May 31, 2001, complainant acknowledged that the agency would then
have fourteen days to comply with the settlement agreement. The agency
argues that complainant implicitly agreed to a delay in compliance
through May 30, 2001, by requesting that the settlement be set aside.
The agency states that any delay in compliance after May 30, 2001, was
partially due to the need of obtaining more information from complainant.
The agency stated that compliance efforts resumed after it received on
May 29, 2001, the decision not to set aside the settlement, and that it
submitted the information for restoration of complainant's leave to the
Defense Finance and Accounting Service on June 20, 2001.
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.
If the complainant believes that the agency has failed to comply with
the terms of a settlement agreement or final action, the complainant
shall notify the EEO Director, in writing, of the alleged noncompliance
within 30 days of when the complainant knew or should have known of the
alleged noncompliance. The complainant may request that the terms of
the agreement be specifically implemented, or, alternatively, that the
complaint be reinstated for further processing from the point processing
ceased.
The Commission has consistently held that settlement agreements are
contracts between the complainant and the agency, and 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, 381 (5th Cir. 1984).
The Commission will find the contract void if coercion, misrepresentation,
or mistake occur during the formation of the contract, making assent to
the agreement impossible. See Shuman v. Department of the Navy, EEOC
Request No. 05900744 (July 20, 1990). This Commission examines coercion
claims with much scrutiny. The party raising the defense of coercion
must show that there was an improper threat of sufficient gravity to
induce assent to the agreement and that the assent was in fact induced
by the threat. Such a threat may be expressed, implied or inferred from
words or conduct, and must convey an intention to cause harm or loss.
A complainant's bare assertions will not justify a finding of coercion.
Lenihan v. Department of the Navy, EEOC Request No. 05960605 (December
5, 1995).
In the instant case, complainant has submitted no persuasive evidence
of coercion other than her bare assertions. We observe that the
mediator's statements to complainant about her likelihood of success
clearly influenced complainant's decision to enter into the settlement
agreement. However, the mediator's opinion that complainant would not
achieve a better result by going forward with her complaint rather than
by entering into the settlement does not rise to the level of coercion.
Complainant may have felt conflicted as to what she should do, but she
has not established that her assent to the settlement agreement was
induced by an improper threat. Upon review of the record, we find that
complainant was not coerced into signing the settlement agreement and
that no justification exists for setting aside the settlement agreement.
With regard to the merits of complainant's allegation of breach, we find
that complainant has not established that a breach occurred. The record
establishes that the agency delayed its compliance with the settlement
agreement because complainant requested that the settlement be voided.
The record also establishes that once the agency rejected complainant's
request that the settlement be set aside, the agency then promptly
requested the information it needed from complainant. Complainant has
not established that she objected to the delay in implementation pending
the decision on her request to set aside the settlement. We find that the
agency acted appropriately in delaying its compliance with the settlement
in light of the fact that complainant had requested that the settlement
be set aside. We further find that the agency promptly took measures to
comply with the agreement once a decision was rendered on complainant's
request to void the settlement agreement. We find that the agency did
not breach the settlement agreement and complainant is not entitled to
reinstatement of her complaint.
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
June 11, 2002
__________________
Date