01986797
05-12-2000
Michele Beauregard, Complainant, v. Daniel R. Glickman, Secretary, Department of Agriculture, Agency.
Michele Beauregard v. Department of Agriculture
01986797
May 12, 2000
Michele Beauregard, )
Complainant, )
)
v. ) Appeal No. 01986797
) Agency No. 942106
Daniel R. Glickman, )
Secretary, )
Department of Agriculture, )
Agency. )
____________________________________)
DECISION
Complainant filed a timely appeal with this Commission from an agency
decision dated July 29, 1998, finding that it was in compliance with
the terms of the November 3, 1993 settlement agreement into which the
parties entered.<1> See 64 Fed. Reg. 37,644, 37,659, 37,660 (1999)(to
be codified and hereinafter referred to as EEOC Regulation 29 C.F.R. �
1614.402); 29 C.F.R. � 1614.504(b); and 64 Fed. Reg. 37,644, 37,659
(1999)(to be codified at 29 C.F.R. � 1614.405).
The settlement agreement provided, in pertinent part, that:
[Forest Service (FS)] agrees to:
(1) Request a reconciliation of travel, in writing, from the National
Finance Center [NFC], for Ms. Beauregard. If the reconciliation results
in monies owed to Ms. Beauregard, the FS will initiate payment to
Ms. Beauregard.
Ms. Beauregard:
(3) Will request a position classification audit, which the FS will
facilitate. The audit will be on Ms. Beauregard's permanent position.
No complaint will be filed over the audit report (evaluation statement),
but full classification rights may be exercised.
By letter to the agency dated May 25, 1994, complainant alleged that
the agency was in breach of the settlement agreement. Specifically,
complainant alleged that she had not received the results of the
reconciliation and had been told that the National Finance Center did
not have time to work on it, and it had to be resubmitted. Additionally,
complainant claimed that a complete "desk audit" was not performed, the
position classifier mistakenly re-classified her position description,
and the intent and spirit of the agreement had been broken because the
classifier inappropriately used his judgement and failed to question
her or her supervisor about her duties.
In its July 29, 1998decision, the agency concluded that it had complied
with term (1) by requesting a reconciliation of complainant's outstanding
travel balances, but that as a result of a discrepancy between NFC and
FS figures, it had yet to be determined if she was owed any money by the
agency. The agency further concluded that complainant was unhappy with
the classifier's conclusion that her position was correctly classified,
and that the settlement agreement did not provide that the complaint
would be reinstated if complainant was unhappy with the results of the
audit, but, as called for in the agreement, complainant could file a
classification appeal.
In response to complainant's appeal, the agency also submits evidence
that in December 1997, complainant and the agency reached a settlement
agreement resolving the travel account issue. The submitted agreement
states specifically that the agreement "is a full compromise and
settlement of item 1 of resolution agreement for EEO complaint 930524,"
and releases the agency from "any and all claims relating... to the
noncompliance complaint." We note that on appeal, complainant fails to
address the travel account issue.
The regulations set forth at 64 Fed. Reg. 37,644, 37,656 (1999)(to be
codified and hereinafter referred to as EEOC Regulation 29 C.F.R. �
1614.504(a)) provide 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).
In the instant case, we concur with the agency's determination that it
was in compliance with the settlement agreement. First, the record
indicates that the parties have resolved complainant's noncompliance
claim with regard to the travel reconciliation issue, and as complainant
has failed to address the issue on appeal, we find that she has abandoned
her claim of agency noncompliance with item (1) in the agreement.
With respect to complainant's claim that the classifier failed to
perform an appropriate audit, we find that the agency has not breached
the settlement agreement. The November 3, 1993 settlement called for
complainant to request a classification audit, and for the agency to
facilitate the audit. While complainant has asserted that the audit was
not performed correctly, she has not claimed that the agency failed to
facilitate the performance of the audit as called for in the settlement.
The record indicates that the audit was performed on February 23, 1994,
and that the classifier subsequently issued an evaluation statement
determining that complainant's position was correctly classified.
Moreover, other than complainant's contentions, there is no evidence
in the record to conclude that the audit was incorrectly performed by
the classifier. In any case, as noted by the agency's decision, if
complainant disagreed with the results of the audit, for any reason,
the settlement itself provided for full classification appeal rights.
Accordingly, the agency's decision finding that it was in compliance
with the settlement agreement is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)
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:
May 12, 2000
____________________________
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_______________ __________________________
Date
1On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.