01991982
01-12-2001
Daisy Kosine, Complainant, v. Daniel R. Glickman, Secretary, Department of Agriculture, Agency.
Daisy Kosine v. Department of Agriculture
01991982
January 12, 2001
.
Daisy Kosine,
Complainant,
v.
Daniel R. Glickman,
Secretary,
Department of Agriculture,
Agency.
Appeal No. 01991982
Agency No. 950420
DECISION
Complainant filed a timely appeal with this Commission from a final
decision (FAD) by the agency dated August 14, 1998, finding that it was
in compliance with the terms of the July 19, 1993 settlement agreement
into which the parties entered.<1> See 29 C.F.R. � 1614.402; 29 C.F.R. �
1614.504(b); and 29 C.F.R. � 1614.405.
The settlement agreement provided, in pertinent part, that the agency
would:
(1) Retroactively promote the complainant to GS-4 effective August 3,
1992; and
(2) Compensate the complainant for backpay and benefits which may have
accrued for the period August 3, 1992 through May 29, 1993.
The agreement also provided that the parties would cooperate and
communicate in good faith and to abide by the terms of the agreement.
By letter to the agency dated April 13, 1995, complainant alleged that
the agency breached the settlement agreement, and requested that the
agency specifically implement the terms. Specifically, complainant
alleged that the agency failed to cooperate in good faith and fair
dealings in the resolution of her previous complaint. The complainant's
breach claim contained statements concerning other incidents of alleged
discriminatory conduct by the agency which are unrelated to the July 19,
1993 settlement agreement.
In its August 14, 1998 FAD, the agency concluded that it had complied
with the terms of the agreement. Specifically, the agency provided
the Commission with documents indicating that complainant had been
promoted to the GS-4 level and that she received back pay in accordance
with the agreement. On appeal, complainant acknowledges that the agency
has complied with that portion of the agreement involving her promotion
to the GS-4 level. In her appeal statement, complainant claims that the
agency failed to comply only with the specific portion of the agreement
that the parties would �work together and get along.�
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 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 the agency has demonstrated compliance
with the terms of the agreement by retroactively promoting complainant
to the level of GS-4 and by compensating her with the appropriate
amount of back pay in accordance with the retroactive promotion.
Complainant's assertion that through various purported actions, the
agency has not �worked together and gotten along� with her, appears to
relate to acts of discrimination that purportedly occurred subsequent
to the signing of the settlement agreement. The record reflects that
complainant was properly advised to bring any new claims of discrimination
to the attention of an EEO Counselor. See 29 C.F.R. � 1614.504(c).
Accordingly, the Commission determines that the agency's finding of no
settlement breach was proper and is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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
January 12, 2001
___________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
__________________
Date
______________________________
1On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply
to all federal sector EEO complaints pending at any stage in the
administrative process. Consequently, the Commission will apply
the revised regulations found at 29 C.F.R. Part 1614 in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.