0120131842
09-13-2013
Nancy E. Tyler, Complainant, v. Mary Jo White, Chair, Securities and Exchange Commission, Agency.
Nancy E. Tyler,
Complainant,
v.
Mary Jo White,
Chair,
Securities and Exchange Commission,
Agency.
Appeal No. 0120131842
Agency No. SEC-0004-2013
DECISION
Complainant filed a timely appeal with this Commission from a final decision (FAD) by the Agency dated March 8, 2013, finding that it was in compliance with the terms of the 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as an Assistant Chief Litigation Counsel at the Agency's facility in Washington, D.C.
Believing that the Agency subjected her to unlawful discrimination, Complainant contacted an Agency EEO Counselor to initiate the EEO complaint process. On December 12, 2012, Complainant indicated that the parties agreed upon terms to settle the complaint. The terms offered by the Director of Human Resources to Complainant, in pertinent part, provided that:
Complainant accepts a salary increase from the current $129,827 to $180,000. Complainant understands that the salary increase will be prospective and not retroactive. The Agency will have a least two pay periods from the effective date of any settlement to effectuate the salary increase.
The EEO Counselor provided Complainant with the terms of the offer. Complainant indicated that she would agree to the terms provided. On December 17, 2012, Complainant emailed the EEO Counselor to find out if she could get the agreement signed soon. In response, the Counselor informed Complainant that "Legal" contacted her on December 14, 2012, and stated that the agreement had to be approved by the Office of General Counsel (OGC) in addition to the Director and the EEO Office. Complainant acknowledged the information.
Complainant continued to check in with the EEO Counselor regarding the review by OGC. She noted in her emails that she believed that the salary increase would go into effect on January 1, 2013. The EEO Counselor responded to Complainant's inquiries by stating that she had contacted individuals but it had not been approved yet. When Complainant was not provided with a salary increase within two pay periods from the day she was provided with the settlement offer, she believed the agreement had been breached.
By letter to the Agency dated February 6, 2013, Complainant alleged that the Agency was in breach of the settlement agreement, and requested that the Agency specifically implement its terms. Specifically, Complainant alleged that the Agency failed to provide Complainant with the salary increase as agreed upon in the settlement agreement.
In its March 8, 2013 FAD, the Agency concluded that there was no agreement. As such, the Agency had not breached the purported settlement agreement. The Agency noted that Complainant was aware that OGC needed to approve the proposed agreement based on her exchanges with the EEO Counselor asking if OGC has in fact approved of the agreement. Therefore, the Agency found that there was no agreement.
This appeal followed. On appeal, Complainant asserted that she in fact had an agreement based on the written exchanges between Complainant, the EEO Counselor and the Director. As such, Complainant argued that the Agency has failed to comply with the agreement. In response to the appeal, the Agency claimed that the EEO complaint was not resolved and the matter is currently being investigated.
ANALYSIS
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. Dep't of Def., 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. Dep't 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. U.S. Postal Serv., 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 Commission finds that the parties merely drafted terms. However, it was clearly indicated to Complainant that the formal written agreement would not be completed until the terms were reviewed by OGC. Following OGC's approval, a completed document would have been created which would have been signed by the parties, thereby resolving the complaint. We note on appeal that Complainant asserted that the Commission has previously held that parties can create a binding agreement without a written contract citing Page v. Broadcasting Bd. Of Gov., EEOC Appeal No. 01A15340 (March 20, 2003). We find that the current matter is distinguished from the situation in Page. The parties in Page had the authority to settle the complaint and were in the process to do so when the EEOC Administrative Judge issued a decision in the Agency's favor. The Agency in Page indicated its intention to breach the settlement agreement, thereby acknowledging that the parties had an agreement. This is not the situation in the instant case. Here, Complainant was clearly informed that there was no agreement until OGC reviewed the terms. Consequently, the agency's decision finding no breach, was proper.
CONCLUSION
Accordingly, based on a review of the entire record, including arguments not expressly addressed herein, the Commission hereby AFFIRMS the agency's decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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 77960, Washington, DC 20013. 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 (S0610)
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 (Z0610)
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 from the Court that the Court appoint an attorney to represent you and that the Court also 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 with the Court 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 13, 2013
__________________
Date
2
0120131842
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120131842