01a43199
04-11-2005
Cheryl DiFruscio, Complainant, v. Jo Anne B. Barnhart, Commissioner, Social Security Administration, Agency.
Cheryl DiFruscio v. Social Security Administration
01A43199
April 11, 2005
.
Cheryl DiFruscio,
Complainant,
v.
Jo Anne B. Barnhart,
Commissioner,
Social Security Administration,
Agency.
Appeal No. 01A43199
Agency No. 99-0410-SSA
DECISION
Complainant filed an appeal with this Commission from the March 6, 2004
agency decision finding that it was not in breach of the terms of the
January 14, 2002 settlement agreement into which the parties had entered.
The settlement agreement provided, in pertinent part, that:
1. The agency will make a lump sum payment of $3,000.00 to
[complainant].
2. [Complainant] will withdraw this complaint as fully satisfied.
3. [Complainant] will withdraw as satisfied, the grievance she filed
on July 2, 1999, with respect to her treatment by [the Assistant District
Manager], in the Lawrence Social Security Office.
4. [Complainant] will withdraw as satisfied, her January 7, 2002 EEO
counseling request.
The settlement agreement also provided that:
Complainant is assured that she will not be intimidated or harassed for
having filed the complaint. If any incident or action is perceived by
complainant to be reprisal or harassment, [complainant] has the right to
pursue the matter as set forth in EEOC regulations at sections 1614.103
and 1614.104.
In a letter to the agency dated February 20, 2004, complainant alleged
that the agency was in breach of the settlement agreement, and requested
that the agency reinstate her complaint if the agency failed to resolve
the breach. Specifically, complainant alleged that the settled complaint
involved the Assistant District Manager's harassment which created
a hostile work environment, that the Assistant District Manager was
detailed out of complainant's duty station for several years resulting in
an improved workplace for complainant, and that the Assistant District
Manager has been ordered to return to complainant's duty station by the
Regional Commissioner.
In its decision finding no breach, the agency stated that it did not
breach the settlement agreement, noting that there was nothing in the
settlement agreement prohibiting the Assistant District Manager from
working in the same office as complainant.
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).
The Commission finds that the agency's finding of no breach was proper.
The settlement agreement contains no provision that would require the
agency to prohibit the Assistant District Manager from returning to
complainant's duty station. Moreover, the Commission notes that EEOC
Regulation 29 C.F.R. � 1614.504(c) states that claims of breach that
subsequent acts of discrimination violate a settlement agreement shall be
processed as separate complaints.<1> Accordingly, the agency's decision
finding no breach of the settlement agreement is 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
April 11, 2005
__________________
Date
1The Commission notes that complainant filed
an appeal in Cheryl DiFruscio v. Social Security Administration, EEOC
Appeal No. 01A43985 (Sept. 21, 2004), req. for recon. denied, EEOC
Request No. 05A50157 (November 17, 2004), regarding a discrimination
complaint in which she alleged that the Assistant District Manager who
had been detailed from her workplace since October 1999, was to return
to her workplace. The Commission affirmed the agency's dismissal of
the complaint for failure to state a claim.