01a52925
09-27-2005
Carmen M. Farrugia, Complainant, v. Elaine Chao, Secretary, Department of Labor, Agency.
Carmen M. Farrugia v. Department of Labor
01A52925
September 27, 2005
.
Carmen M. Farrugia,
Complainant,
v.
Elaine Chao,
Secretary,
Department of Labor,
Agency.
Appeal No. 01A52925
Agency No. 03-05-052
DECISION
Complainant filed an appeal with this Commission from a final decision
by the agency dated January 10, 2005, finding that it was in compliance
with the terms of the October 8, 2004 settlement agreement into which
the parties entered.
The settlement agreement provided, in pertinent part, that:
The Agency agrees to allow Complainant a 90-day trial period of the
flexi-place program beginning within 30 days after the effective date
of this agreement. Complainant will be allowed to work from home one
day a week and will decide with her supervisor what day each week that
will be. . . . .
The Agency will assure that Complainant's assigned laptop computer is in
working order and has the necessary software and hardware for Complainant
to work at home.
By letter to the agency dated December 3, 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 place her in the flexi-place program
and that the laptop computer assigned to her did not work properly,
had software programs incompatible with the programs used by the agency
and did not have hardware compatible with her internet service at home.
In its January 10, 2005 decision, the agency concluded that complainant
had an affirmative duty pursuant to the settlement agreement to request
that she be allowed to work on a flexi-place arrangement, and because
she had not asked, her supervisor had not placed her on one. Further,
the agency concluded that the agency believed the laptop assigned to
complainant to be in working order, that additional equipment had been
provided so that complainant's internet service was compatible with
the laptop and that complainant should inform management of any further
problems she had with it. The agency determined that no breach of the
settlement agreement occurred.
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).
In the instant case, we find that no breach of the settlement agreement
has occurred. Specifically, as noted by the agency on appeal,
complainant concedes that in January, she was placed on a flexi-place
work-at-home arrangement.
With respect to the laptop assigned to complainant (provision (3)), we
find that no breach has occurred. Complainant states on appeal that the
computer is slow, but that repairs have been undertaken and additional
parts were replaced before the computer was returned to her in April 2005.
Complainant appears to use the computer for her work while at home, and
accordingly, we conclude that the laptop was in sufficient working order.
We therefore find that no breach of the settlement agreement occurred
as alleged.
We therefore AFFIRM the agency's determination finding no breach of the
settlement agreement of October 8, 2004.
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 27, 2005
__________________
Date