01A50276
01-18-2005
May Su, Complainant, v. R.L. Brownlee, Acting Secretary, Department of the Army, Agency.
May Su v. Department of the Army
01A50276
January 18, 2005
.
May Su,
Complainant,
v.
R.L. Brownlee,
Acting Secretary,
Department of the Army,
Agency.
Appeal No. 01A50276
Agency No. ARDL103JAN0008
DECISION
The complainant filed a timely appeal with this Commission from a final
decision (FAD) by the agency dated August 6, 2004, finding that it was in
compliance with the terms of the September 16, 2003 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. During the time relevant to this
case, the complainant was an Assistant Professor at the agency's Defense
Language Institute Foreign Language Center and Presidio of Monterey.
The settlement agreement provided, in pertinent part, that:
(1) The intermediate and Advance classes that are currently under
the Asian I School, will be realigned under the School of Continuing
Education, as originally planned. It is understood that this realignment
will include the complainant, and is currently projected to be completed
during November 2003. It is understood that the exact date is contingent
upon the completion of the renovation of the classroom facilities by
the private contractor that is performing the work.
(2) The complainant's performance appraisal rating period of October
1, 2001 to September 30, 2002 will be modified under bullet number 8
to read as follows: Ms. Su made a multimedia presentation at the First
International Symposium on Chinese Language Teaching in Beijing in July.
This modification will be completed within 30 days from the effective
date of this agreement.
The settlement provided that allegations of noncompliance shall be in
writing and go to the agency's Director of Equal Employment Opportunity
(EEO) Compliance and Complaints Review in Virginia at a specified address,
with a copy to the EEO Officer of the Defense Language Institute Foreign
Language Center and Presidio of Monterey. By e-mail to the EEO Officer in
Monterey on December 1, 2003, the complainant alleged that the agency was
in breach of the settlement agreement. Regarding settlement agreement
term 1, the complainant contended that she was not moved in November
2003, as agreed. Regarding term 2, the complainant alleged that while
her appraisal was updated, her school record was not updated to reflect
that she met the minimum standard for research work. She contended that
all her multimedia credits were not recognized by a Reviewing Board.
In a subsequent letter dated July 7, 2004, this time to the Director of
EEO located in Virginia, as called for in the settlement agreement, the
complainant again alleged noncompliance with the settlement agreement.
Regarding term 1, the complainant suggested that she was supposed to be
moved on December 2, 2003, and wrote she was not because instructors,
with management support, did not want to comply. She wrote that after
she appealed, she was moved on December 10, 2003. Regarding term 2,
the complainant stated she did not receive an updated Notification of
Personnel Action form to reflect the revision in her appraisal.
The FAD of August 6, 2004 addressed the July 7, 2004 letter, and found
no breach. Another document it referenced stated there was no agreement
to issue a Notification of Personnel Action regarding the appraisal.
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, the complainant alleges term 1 was breached
because of an eight day delay in implementing its terms. The settlement
agreement, however, did not provide a specific date for completion of
this term, nor did it state that time was of the essence. This term
was implemented within a reasonable amount of time and hence was not
breached. The complainant alleges that term 2 was breached because her
school records were not updated and she was not issued a Notification of
Personnel Action regarding the change in the appraisal. These matters,
however, were not part of the settlement agreement.
As the agency is in compliance with the settlement agreement, the FAD
is 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
January 18, 2005
__________________
Date