01A21462_r
04-25-2002
Lillian J. Seagren, Complainant, v. Thomas E. White, Secretary, Department of the Army, Agency.
Lillian J. Seagren v. Department of the Army
01A21462
April 25, 2002
.
Lillian J. Seagren,
Complainant,
v.
Thomas E. White,
Secretary,
Department of the Army,
Agency.
Appeal No. 01A21462
Agency Nos. AVEJFO9811I0730
AVEJFO0105B0060
AJEVFO0004A0080
DECISION
Complainant filed a timely appeal with this Commission from a final
decision (FAD) by the agency dated December 3, 2001, finding that it was
in compliance with the terms of the July 19, 2001 settlement agreement.
See 29 C.F.R. � 1614.402; 29 C.F.R. � 1614.504(b); and 29 C.F.R. �
1614.405. The agreement settled a complaint by complainant wherein she
alleged that she was subjected to discrimination on the bases of age,
disability, sex, and reprisal when the agency issued a proposal to remove
her on October 23, 1998.
The settlement agreement provided, in pertinent part, that:
(3a) Any and all adverse personnel information relating to the issues
in the EEO complaint referenced above, shall be removed from the
complainant's personnel folder and the agency will make all reasonable
efforts to purge such information from other personnel files at Huachuca
and Fort Monmouth, with the exception of any files under the control
or custody of the Fort Huachuca Office of the Staff Judge Advocate,
or the CECOM Legal Office;
(3b) The complainant's annual (7-1-97 to 6-30-98) Senior System Civilian
Evaluation Report will be changed from a �4" block to a �3" block.
A copy of the 6-30-98 Evaluation Report will be changed in accordance
with this provision is incorporated herein by reference to Exhibit 2;
(3c) The complainant's within grade step increase (clock or calendar)
will be reset according to any consequential change resulting from
the change to the Evaluation Report referenced above. Thus if the
complainant is now eligible for a within grade step increase, one will
be given retroactive to the effective date;
(3d) The complainant will have 447 hours of sick leave reinstated;
(3e) The agency will remove the proposed letter of removal drafted by
[agency employee] from her official personnel folder, and any other
personnel record at Fort Huachuca and Fort Monmouth with the exception
of any files under the custody or control of the Fort Huachuca Office
of the Staff Judge Advocate or the CECOM Legal Office;
(3f) The agency warrants that in accordance with all laws and
regulations, the complainant will be free of reprisal.
By letter to the agency dated October 19, 2001, complainant alleged
that the agency breached the settlement agreement. Specifically,
complainant alleged that the agency failed to change her annual Senior
System Civilian Report; failed to initiate a grade step increase; failed
to reinstate 447 hours of sick leave; and failed to remove a letter of
removal from her file. Finally, complainant alleged that the agency
engaged in reprisal, contrary to the terms of the agreement.
In its December 3, 2001 FAD, the agency found no breach of the settlement
agreement. Specifically, the agency found that it has initiated
processing to comply with provisions 3b, 3c, and 3d of the agreement.
Moreover, the agency found that it had removed the complainant's proposed
letter of removal in accordance with provisions 3a and 3e. Finally,
the agency found that complainant's allegation of reprisal should be
processed as a separate complaint instead of as a breach allegation.
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).
Provision 3b
Complainant contends that the agency failed to change her annual
Senior System Civilian Evaluation Report. The agency stated that it
initiated action to replace the former performance appraisal at issue
with a �Success Level 3" in accordance with provision 3b; however, the
record is devoid of any documentation that establishes that complainant's
evaluation has been changed. Consequently, we are unable to ascertain
whether or not the agency complied with this provision of the agreement.
Provision 3c
Complainant contends that the agency failed to initiate a step increase
promised by the agreement. Although the agency likewise contends that
it has initiated complainant's step increase, there is no documentation
in the record that the agency actually has enacted complainant's step
increase.
Consequently, we are unable to ascertain whether the agency complied
with this provision of the agreement.
Provision 3d
Complainant alleges that the agency failed to reinstate 447 hours of sick
leave, as required by the agreement. Despite the agency's assurance
that the Defense Finance and Accounting Office has been directed to
increase complainant's sick leave balance by the promised 447 hours,
there is no documentation in the record to establish that this action has
been completed by the agency. Consequently, we are unable to ascertain
whether the agency complied with this provision of the agreement.
Provision 3a,3e
Complainant further contends that the agency failed to remove a letter
of removal from complainant's file. In a letter dated November 7,
2001 the agency reports that an agency official's inspection revealed
that the letter of removal had been purged from complainant's file,
there is no statement in the record attesting to this matter from this
particular official. Consequently, we are unable to ascertain whether
the agency complied with this provision of the settlement agreement.
Provision 3f
Finally, complainant alleges that the agency engaged in reprisal,
contravening the terms of provision 3f. The Commission has held that a
claim of reprisal in violation of a settlement agreement's no reprisal
clause is to be processed as a separate complaint rather than as a
breach of the settlement agreement. Bindal v. Department of Veterans
Affairs, EEOC Request No. 05900225 (August 9, 1990). Additionally, 29
C.F.R. Section 1614.504(c) provides that [a]llegations that subsequent
acts of discrimination violate a settlement agreement shall be processed
as separate complaints. Consequently, complainant is advised to
immediately contact an EEO Counselor if she wants to pursue this claim
as a separate complaint.
Accordingly, the Commission VACATES the agency's final decision and
REMANDS this matter to the agency for a supplemental investigation and
further processing consistent with the ORDER set forth herein.
ORDER
The agency is ORDERED to take the following action:
The agency is ORDERED to conduct a supplemental investigation to ascertain
whether it has complied with the terms in provisions 3a, 3b, 3c, 3d,
and 3e of the settlement agreement. The agency shall supplement the
record with all relevant documentation that establishes and evidences
its compliance with the agreement.
Thereafter, the agency will issue a final decision or notify complainant
that the agency is reinstating her complaint for processing. The
supplemental investigation and issuance of the final decision or notice of
reinstatement must be completed within thirty (30) calendar days of the
date this decision become final. A copy of the agency's final decision
or notice of reinstatement must be sent to the Compliance Officer as
referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the complainant. If the agency does not comply with the Commission's
order, the complainant may petition the Commission for enforcement
of the order. 29 C.F.R. � 1614.503(a). The complainant also has the
right to file a civil action to enforce compliance with the Commission's
order prior to or following an administrative petition for enforcement.
See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g).
Alternatively, the complainant has the right to file a civil action on
the underlying complaint in accordance with the paragraph below entitled
"Right to File A Civil Action." 29 C.F.R. �� 1614.407 and 1614.408.
A civil action for enforcement or a civil action on the underlying
complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c)
(1994 & Supp. IV 1999). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 29 C.F.R. � 1614.409.
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 (R0900)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court within ninety (90) calendar days from the date
that you receive this decision. In the alternative, you may file a
civil action after one hundred and eighty (180) calendar days of the date
you filed your complaint with the agency, or filed your appeal with the
Commission. 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. 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 25, 2002______________
Date