0120091405
05-14-2009
Donna F. Dunn, Complainant, v. Timothy F. Geithner, Secretary, Department of the Treasury, Agency.
Donna F. Dunn,
Complainant,
v.
Timothy F. Geithner,
Secretary,
Department of the Treasury,
Agency.
Appeal No. 0120091405
Agency No. EEODFS940040F
DECISION
Complainant filed a timely appeal with this Commission from a final
decision (FAD) by the agency dated January 14, 2009, finding that it
was in compliance with the terms of the February 6, 1995 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.
The settlement agreement provided for the following:
(A) Reassign complainant to a permanent position in series/grade
0592/6, position description #06145 at the Gateway Center.
The reassignment will be effective no later than pay period beginning
March 5, 1995;
(B) Reassignment is for the purpose of providing reasonable
accommodations for her medical condition: allergies to dust, paper mites,
carpets, mold and mildew; and
(C) Allow complainant to apply for disability retirement if she
is still unable to work in the area stated in A. above after a 90 day
trial period.
By letter to the agency dated September 12, 2008,1 complainant alleged
that the agency was in breach of the settlement agreement, and requested
that the agency specifically implement its terms. Complainant alleged
that the agency failed to accommodate her disability when she did not
receive training alongside her co-workers. The record indicates that
complainant's co-workers received training in a carpeted room, while
complainant received training in a room which did not have carpet,
in order to compensate her allergic condition. Complainant maintains
that the agency failed to accommodate her disability by not holding the
training in a non-carpeted room. The record discloses that complainant
received training in a room which was not carpeted. Complainant also
asserts that the training she received separate from her co-workers was
inferior, because the instructor had just completed the training while
her co-workers were trained by personnel from agency headquarters.
In its January 14, 2009 FAD, the agency concluded that it had complied
with the specific provision of the agreement between the parties. In its
final decision, the agency points out that complainant was reassigned in
accordance with provision A of the agreement, and she was not prevented
for any reason for applying for disability retirement as provided in
provision B.
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 complainant has failed to demonstrate
that the agency breached the agreement as alleged. While the settlement
agreement does not specifically address the area of training, we find that
the agency properly accommodated complainant's disability by providing
training for complainant in a room without carpet Moreover, we find that
the agency has specifically complied with provision A of the February 6,
1995 agreement between the parties.
Accordingly, we find that the agency's determination that it complied with
the settlement agreement between the parties was proper. The agency's
decision is hereby affirmed for the reasons set forth herein.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 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 (S0408)
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 (Z1008)
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
May 14, 2009
__________________
Date
1 The record indicates that complainant clarified her breach allegation
in a letter to the agency dated November 18, 2008.
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0120091405
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120091405