Nancy E. Miller, Complainant,v.Dr. James G. Roche, Secretary, Department of the Air Force, Agency.

Equal Employment Opportunity CommissionSep 10, 2002
01A02600_r (E.E.O.C. Sep. 10, 2002)

01A02600_r

09-10-2002

Nancy E. Miller, Complainant, v. Dr. James G. Roche, Secretary, Department of the Air Force, Agency.


Nancy E. Miller v. Department of the Air Force

01A02600

September 10, 2002

.

Nancy E. Miller,

Complainant,

v.

Dr. James G. Roche,

Secretary,

Department of the Air Force,

Agency.

Appeal No. 01A02600

Agency No. AL00000323

Hearing No. 230-92-4092X

DECISION

On February 7, 2000, complainant filed an appeal with this Commission

concerning �a breach of a settlement agreement.� In her appeal,

complainant referenced settlement negotiations held by the parties

in 1993 related to her October 29, 1990 discrimination complaint.

The appeal stated that complainant had �patiently waited for more than

seven years� but �the agency failed to complete a settlement.�

In the instant case, the record indicates that, after complainant

requested a hearing, the administrative judge (AJ) assigned to the

case remanded the complaint to the agency prior to the hearing to give

the parties the opportunity to reach a settlement. After initial

negotiations were held focusing on priority consideration (for

promotions) for complainant, the agency, in a June 25, 1993 memorandum

to complainant's attorney, rejected complainant's increased demands for

immediate promotion, back pay, and attorney's fees. The final paragraph

of the memorandum stated the representative's belief that he could,

�still obtain the Agency's concurrence to proceed with our originally

proposed settlement,� and that after complainant's attorney discussed the

matter with his client, �we could then review exactly where we stand.�

The memorandum concluded with the agency's representative's statement

that, �[o]therwise, I am prepared to request a new hearing date from the

[AJ].� The record also shows that, by letter to the agency EEO officer

dated December 15, 1998, complainant's attorney alleged that, while

he had stopped in the EEO offices in 1996 through 1998, complainant's

case was never reopened after it had been returned to the EEO office to

determine the sole issue of attorney's fees.

In multiple submissions on appeal, complainant contends that, �[n]o

settlement was reached inasmuch as the [a]gency would not agree to

[c]omplainant's demand for payment of her attorney's fees.� Complainant

also asserts that �the matter� was returned to the agency EEO office to

schedule a meeting with those with authority to accept the settlement,

including attorney's fees, but that the meeting never occurred.

Complainant further asserts that the agency's representative should

have known that by the June 25, 1993 memorandum that he had committed

himself to return the complaint to the AJ, and that �[t]he [a]gency

has done nothing to settle or resolve complainant's petition . . . .�

Complainant's attorney also asserts that since 1993 he visited the EEO

office not less than 10 times, and sent not less than �20 correspondences�

to that office between 1993 and December 1998 to request action on

the file. Finally, complainant contends that [t]he five (5) year delay

is more attributable to the [a]gency than the [c]omplainant,� and that,

�[c]omplainant merely waited for a Settlement conference . . . which

never occurred and prompted the 1998 letter.�

In response, the agency asserts that it has no record of a settlement

agreement reached by the parties or of contact by complainant's

attorney with the EEO office between 1993 and 1998. The agency also

submits an affidavit from the agency EEO officer named as responsible by

complainant, which states that between 1994 and November 1997 (when he

retired) he did not �recall receiving a single piece of correspondence

from [complainant's attorney],� or �recall [complainant's attorney]

ever coming to see me to discuss complaints filed by [complainant],� or

�recall [complainant's attorney] calling me on the telephone to discuss

[complainant's] complaints.�

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).

In the instant case, we find that complainant failed to show breach of

a settlement agreement. Although complainant asserts a breach of an

agreement, the record is clear, including an admission from complainant,

that no agreement was ever reached by the parties. Moreover, despite

complainant's apparent belief that the agency was obligated by the AJ's

remand to reach a settlement agreement with complainant, the agency was

under no such obligation. We also find that, while absent an agreement

the matter should have been returned to the AJ for proper adjudication,

complainant has failed to act with due diligence in pursuing her

unresolved complaint. Regardless of complainant's assertions of

agency responsibility to settle or return the complaint to the AJ,

complainant has not provided any evidence that she diligently pursued

the matter between June 1993 and December 1998. While there is no record

of the claimed myriad attempts by complainant's attorney to contact the

agency concerning the issue, the record does contain an affidavit from

the EEO officer named by complainant's attorney stating that he had no

contact with complainant's attorney from 1994 through November, 1997.

The record thus indicates that, instead of pursuing her complaint,

complainant (as admitted on appeal) �merely waited for a [s]ettlement

conference.� We therefore find complainant's contentions insufficient

to justify a return of the complaint for adjudication after her failure

to pursue her complaint for over five years. See Baldwin County Welcome

Center v. Brown, 466 U.S. 147, 151 (1984) (per curiam) ("One who fails

to act diligently cannot invoke equitable principles to excuse lack

of diligence"); Rys v. United States Postal Service, 886 F.2d 443, 446

(1st Cir. 1989) ("to find succor in equity a Title VII plaintiff must

have diligently pursued her claim").

Accordingly, we find no breach of the purported settlement agreement

between the parties and we find that the underlying complaint is properly

dismissed.

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

September 10, 2002

__________________

Date