01A01654
03-29-2001
Martha A. Aguirre, Complainant, v. Lawrence J. Delaney, Acting Secretary, Department of the Air Force, Agency.
Martha A. Aguirre v. Department of the Air Force
01A01654
March 29, 2001
.
Martha A. Aguirre,
Complainant,
v.
Lawrence J. Delaney,
Acting Secretary,
Department of the Air Force,
Agency.
Appeal No. 01A01654
Agency Nos. KHOF99227, KHOF99264 & KHOF99268
DECISION
Complainant timely appealed the agency's decision not to reinstate
her complaint of unlawful employment discrimination that the parties
had settled. See 29 C.F.R. � 1614.402(a), � 1614.405, and � 1614.504.
The record indicates that complainant filed complaints concerning her
performance rating, working conditions, and work assignments. Thereafter,
on August 24, 1999, the parties entered into a settlement agreement in
order to resolve the complaints. In the settlement agreement, the agency
agreed: to issue complainant a new appraisal rating of Superior with a
numerical rating of 81 for the 98-99 rating period; to pay complainant a
lump sum of $600.00; to compose a letter to the Human Resources Division
of Standard Aero, informing Standard Aero of the difficulties between
complainant and two identified Standard Aero employees and requesting
Standard Aero's assistance in alleviating the situation; and to remove
an entry on complainant's AF Form 971, Supervisor's Record of Employee,
counseling her on blocking the air conditioning vents in the work area.
On November 5, 1999, complainant alleged that the agency breached the
terms of the settlement agreement since it did not comply with the terms
thereof within the 60-day time limit. In her letter dated December 2,
1999, complainant also indicated that the agency breached the settlement
agreement when she was subjected to subsequent discriminatory actions,
i.e., concerning working conditions, a hostile work environment, overtime,
and reassignment, which occurred after the settlement agreement.
On December 13, 1999, the agency issued a decision finding no settlement
breach. Specifically, the agency stated that complainant received $600.00
on November 16, 1999, and her AF 971 reflected no derogatory annotations.
The agency also indicated that it forwarded the letter to Human Resources
Division of Standard Aero on November 30, 1999.
On appeal, complainant indicates that the contents of the agency's letter
to Human Resources Division were not mutually agreed upon by both parties.
Specifically, complainant indicates that she proposed that the subject
letter incorporate her being harassed by two identified individuals of
Standard Aero and that this letter be included in these individuals'
personnel files. Complainant also indicates that the reprisal actions
described in her December 2, 1999 letter constituted settlement breach,
and not a new complaint, as she was advised by an EEO Counselor.
In response to complainant's appeal, the agency states that on September
1, 1999, the agency submitted the appropriate documentation to the
Defense Finance and Accounting Service requesting $600.00 payment,
which was received by complainant on November 16, 1999. The agency also
indicates that on September 8, 1999, complainant's 98-99 appraisal rating
was changed to a Superior with a numerical rating of 81.
EEOC Regulation 29 C.F.R. � 1614.504 provides that if the complainant
believes that the agency failed to comply with the terms of a settlement
agreement, the complainant should notify the Director of Equal Employment
Opportunity, in writing, of the alleged noncompliance with the settlement
agreement, within thirty (30) days of when the complainant knew or should
have known of the alleged noncompliance. The complainant may request that
the terms of the settlement agreement be specifically implemented or,
alternatively, that the complaint be reinstated for further processing
from the point processing ceased.
The agency shall resolve the matter and respond to the complainant,
in writing. If the agency has not responded to the complainant, in
writing, or if the complainant is not satisfied with the agency's attempt
to resolve the matter, the complainant may appeal to the Commission for
a determination as to whether the agency has complied with the terms of
the settlement agreement or final decision.
The Commission has held that settlement agreements are contracts between
the complainant and the agency and it is the intent of the parties
as expressed in the contract, and not some unexpressed intention, that
controls the contract's construction. Eggleston v. Department of Veterans
Affairs, EEOC Request No. 05900795 (August 23, 1990). In addition, the
Commission generally follows the rule that if a 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 v. Building Engineering Services,
730 F.2d 377 (5th Cir. 1984). The Commission has followed this rule
when interpreting settlement agreements. The Commission's policy in
this regard is based on the premise that the face of the agreement best
reflects the understanding of the parties.
The record indicates that complainant was issued a new appraisal rating
of Superior with a numerical rating of 81 for her 98-99 rating period in
accordance with the settlement agreement. With regard to $600.00 payment,
the record, undisputed by complainant, indicates that the agency timely
processed this payment on September 1, 1999, which was within 60 days of
the settlement agreement, and complainant received the payment on November
16, 1999. The record also indicates that her AF Form 971 was corrected in
accordance with the settlement agreement. With regard to the letter to
the Human Resources Division of Standard Aero, the record reflects that
on November 30, 1999, management sent such letter informing Director of
Human Resources of difficulties between complainant and two Standard Aero
employees and requesting his assistance in alleviating the situation.
Complainant contends that the contents of this letter was not approved
by her. Complainant also indicates that this letter did not include the
fact that she was harassed by those two individuals and that this letter
should be included in these individuals' personnel files. However, the
Commission finds that these matters were not specified in the agreement
and, therefore, are beyond the scope of the settlement agreement.
With regard to complainant's reprisal claim or further discrimination on
the part of the agency violated the settlement agreement, the Commission
finds that the matter should be processed as a separate complaint under
29 C.F.R. � 1614.106 rather than as a claim of noncompliance with a
settlement agreement. See also Anthony v. Department of Education, EEOC
Request No. 05910142 (April 18, 1991). Thus, the Commission finds that
complainant was properly advised by the agency to file a new complaint
with regard to the subsequent discriminatory actions which were described
in her December 2, 1999 letter.
Accordingly, the agency's decision not to reinstate the settled matters
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
March 29, 2001
__________________
Date