01a50964
04-13-2005
Geraldine McKinney, Complainant, v. Peter B. Teets, Acting Secretary, Department of the Air Force, Agency.
Geraldine McKinney v. Department of the Air Force
01A50964
April 13, 2005
.
Geraldine McKinney,
Complainant,
v.
Peter B. Teets,
Acting Secretary,
Department of the Air Force,
Agency.
Appeal No. 01A50964
Agency No. WEIM04093
DECISION
Complainant filed a timely appeal with this Commission from a final
decision (FAD) by the agency dated October 19, 2004, finding that it
was in compliance with the terms of the September 16, 2004 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, in pertinent part, that:
2. In exchange for the actions and promises of complainant in paragraph
1 of this agreement, the Agency agrees that:
The complainant will be paid a cash award, applicable to the annual
rating received in the year 2004, in the amount of $700.00. The award
will be paid to the complainant within 30 days of the signing of
this agreement.
Management will reaccomplish the annual performance rating (reflective
of 2003 performance, given in 2004) to reflect the 700.00 award.
This agreement resolves all disputes, all issues and all disagreements
between the complainant and the agency arising out of or connected with
the facts upon which the complaint was based. Complainant waives and
releases any and all further or additional relief, remedies, and causes
of action of any and all kinds against the [agency] and any and all of
its officers, managers, supervisors, and employees based upon such facts.
By letter to the agency dated October 12, 2004, complainant alleged
that the settlement agreement did not adequately address the second
claim contained in her complaint. Complainant also alleged that,
the settlement agreement attempts to constrain any effort on her part
to file complaints on subsequent acts of discrimination. As a result,
complainant seeks to reject the settlement agreement and requests a more
exhaustive assessment of her complaint.
In its October 19, 2004 FAD, the agency concluded it had complied with all
terms set forth in the settlement agreement. The agency also concluded
that no further promises were made by the agency to promote or restore
her to the WG-10 position she held prior to the reduction-in-force in
the year 2000 that put her at the WG-5 level with retained pay.
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).
Here, the plain language of paragraph 2 of the settlement agreement in
resolution of Complaint No. WEIM04093 dictated an agency obligation to
provide complainant with a cash award in the amount of $700.00 and to
reaccomplish the annual performance rating to reflect the cash award.
We find that the agency has met these obligations. Accordingly,
the Commission finds that the agency did not breach the settlement
agreement of September 16, 2004. Accordingly, the agency's decision
to reject complainant's request to reinstate Complaint No. WEIM04093 is
hereby 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 13, 2005
__________________
Date