0120141795
03-04-2015
Complainant, v. Tom J. Vilsack, Secretary, Department of Agriculture, Agency.
Complainant,
v.
Tom J. Vilsack,
Secretary,
Department of Agriculture,
Agency.
Appeal No. 0120141795
Agency No. RD-2009-00389
DECISION
Complainant filed a timely appeal with this Commission from a final decision (FAD) by the Agency dated August 6, 2014, finding that it was in compliance with the terms of the 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Secretary at the Agency's USDA, Rural Development (RD) facility in Portland, Oregon. She has since retired.
On September 30, 2010, Complainant and the Agency entered into a settlement agreement to resolve an EEO matter. The settlement agreement provided, in pertinent part, that:
(1) The Agency will pay Complainant $137,000.00 (One Hundred Thirty-Seven Thousand Dollars) in satisfaction of all claims...arising out of, or regarding, Complainant's employment with the Agency up to and including the effective date of this Agreement;
(3) The Agency will give Complainant all necessary and appropriate assistance in filing a claim for disability retirement benefits with the United States Office of Personnel Management. The Agency will confirm that Complainant is disabled. ... and that the Agency does not have any positions available for reassignment that could accommodate her lack of mobility and need for special access. The Agency will fully support Complainant's application until it is resolved; and
(9) Upon being separated from her employment with USDA Rural Development for physical and medical inability to perform, Complainant will file and prosecute a claim for disability retirement benefits with the United States Office of Personnel Management...USDA Rural Development's obligations with regard to her disability application are limited to performing the activities listed in paragraph 3 above.
(10) To respect the privacy rights of all individuals involved in this matter, [both parties agree] the fact that the complaint was voluntarily resolved in a manner acceptable to both sides may be communicated to others. Explicit terms of the agreement will not be discussed with, disclosed, or released to anyone who does not need the information to implement the agreement, without the express permission of the other party.
On October 1, 2010, Complainant states that she received correspondence from the Agency which gave her an incorrect mailing address. Complainant also asserts that, due to incorrect information, a June 25, 2011 Copy of Priority Mail, that she sent, was returned undeliverable.
On November 3, 2010, the Agency sent an email to the Rural Development employees. The email stated that "this is to inform you that [Complainant] has left the USDA and is no longer in our employ. We will be initiating action to fill her position shortly." The email did not mention the terms of the Agreement.
On November 16, 2011, the Agency made a lump sum electronic transfer of funds in the amount of $137,000.00 to Complainant's attorney. Proof the payment is in the record.
Complainant requested that the Human Resources Officer provide her with documents for her retirement processing. The Human Resources Officer told Complainant that she would provide the documentation directly to OPM, when they asked for it. Complainant alleges that the Agency "failed to provide information to OPM to deliberately delay [her] obtaining the benefits that [she] was entitled to." On November 29, 2011, Complainant notified the Rural Development Oregon Human Resources Office that she will not exercise the option to file a Disability Retirement Application. She informed the Human Resources Manager that she chose "to file directly with OPM."
In December of 2011, Complainant was told that OPM approved her application for disability retirement. On January 4, 2012, Complainant received written confirmation from OPM, approving her disability retirement. Complainant stated that she "cash[ed] out [her] retirement to purchase it" (referring to a home in Arizona). Complainant stated that she had to pay early termination fees to cash out her retirement and that the amount she received was taxed as income. Complainant blamed the Agency for causing her "long-term financial damage as well as a negative impact on [her] health."
On December 10, 2013, Complainant contacted the Administrative Judge (AJ), who helped facilitate the settlement agreement. She advised the AJ that she believed that the Agency breached the terms of the Agreement. Complainant did not notify the Agency of her breach claim. The record does not include an Agency determination on the breach claim.
Instead, on December 18, 2013, Complainant sent a letter to the Commission. She indicated in her correspondence to the Commission that she wished to file a new complaint.1. Complainant also asserted her breach claim. Complainant stated that the Agency failed to "give [her] all necessary and appropriate assistance in filing her claim" when the Agency failed to provide documents to the OPM.
In its August 6, 2014 response to this appeal (which we accept as the Final Agency Decision), the Agency concluded that it had not breached the Agreement because it complied with the terms of the Agreement. The Agency also asked the Commission to reject Complainant's appeal to OFO as Complainant failed to timely and properly inform the Agency of any alleged breach, before she appealed to the Commission.
ANALYSIS
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. Dep't of Def., 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. Dep't 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. U.S. Postal Serv., 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 the Agreement is valid and binding.
On appeal, Complainant maintains that the Agency breached paragraph 3 when it failed to fully support her application. She does not identify any documents that were delayed or withheld. Instead, Complainant referenced the November 3, 2010 email that was sent to Rural Development employees, informing the employees that Complainant had left the Agency. Complainant objects to the email being sent, because she states that the email was sent without her knowledge or consent. Complainant also provides statements pertaining to a January 25, 2010 "incident" between two co-workers. Complainant was a witness to the incident and served as a witness. She is asking for reimbursement for her "legal expenses" for what she describes as the Agency's "continued pattern of discrimination against persons with disabilities."
We find that the Agency has provided sufficient documentation of its compliance. Complainant advised the Agency that she intended to file her application directly with the OPM. Further, there is no evidence that the Agency intentionally withheld or delayed providing information to the OPM. To the extent that Complainant has concerns regarding the length of time that it took to process her disability retirement application, this is a matter that should be directed to OPM. Further, from the record, it appears that the incorrect address was due to an inadvertent error. Although the Agreement provided that the explicit terms of the agreement would not be disclosed, there is nothing in the Agreement that would prevent the Agency from communicating with its staff so long as the explicit terms of the Agreement were not disclosed. Since Complainant presents no evidence of bad faith on appeal, we find that the Agency has complied with the Agreement.
CONCLUSION
Accordingly, we AFFIRM the Agency's final decision finding no breach of the Agreement.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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 tends 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), at 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 77960, Washington, DC 20013. 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 (S0610)
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 (Z0610)
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 from the Court that the Court appoint an attorney to represent you and that the Court also 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 with the Court 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
March 4, 2015
__________________
Date
1 Complainant stated that she wants to initiate a new claim against the Agency, alleging a denial of reasonable accommodation and discrimination based on her race. She acknowledged that she is seeking "assistance to continue the processing of her EEO claims," despite the fact that Complainant is no longer an employee of the Agency and the settlement agreement resolved all her pending claims up to the date of the settlement agreement.
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0120141795
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120141795