Naomi B. Donald, Complainant,v.Donald H. Rumsfeld, Secretary, Department of Defense, (Education Activity), Agency.

Equal Employment Opportunity CommissionOct 7, 2003
01A32686_r (E.E.O.C. Oct. 7, 2003)

01A32686_r

10-07-2003

Naomi B. Donald, Complainant, v. Donald H. Rumsfeld, Secretary, Department of Defense, (Education Activity), Agency.


Naomi B. Donald v. Department of Defense (Education Activity)

01A32686

October 7, 2003

.

Naomi B. Donald,

Complainant,

v.

Donald H. Rumsfeld,

Secretary,

Department of Defense,

(Education Activity),

Agency.

Appeal No. 01A32686

Agency Nos. PE-FY97-03; PE-FY96-04

DECISION

Complainant appealed to this Commission, alleging that the agency breached

terms (III)(B) and (III)(C) of the September 20, 2001 settlement agreement

into which the parties entered. Complainant contends that she repeatedly

raised her claim of noncompliance with the agency, but never received

any response from the agency.

The settlement agreement provided, in pertinent part, that:

(III)(B) The Agency agrees to reimburse Complainant's reasonable attorney

fees, in the amount of . . . $2,500.00, upon receipt of a copy of the

retainer or other fee agreement and a statement of itemized charges.

(III)(C) The Agency agrees to recredit sixteen (16) days of sick leave

taken by complainant in the 1997-1998 school [year]. The sick leave

days will be calculated from 26 October 1998 through 9 November 1998

for adjustment of payroll records. Complainant will also receive an

additional four (4) teacher school days for the 2001-2002 school year.

In response to complainant's appeal, the agency contends that it paid

complainant's attorney fees, restored 16 days of her leave, and paid her

for 4 teacher school days. The Commission will consider the agency's

response to complainant's appeal to constitute a denial that any breach

of the settlement occurred.

As an initial matter the Commission finds that it has jurisdiction

over the present appeal. Where, as here, a claimant raises breach

of settlement with the agency, and the agency fails to respond within

thirty-five (35) days, complainant may appeal directly to this Commission.

29 C.F.R. � 1614.504(b). Although the record contains no copy of the

breach claims complainant sent to the agency's EEO Office, the Commission

notes that the agency fails to rebut complainant's contention that she

notified the agency of the alleged breach more than 35 days prior to

her appeal.

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 Commission is unable to determine whether the

agency breached the settlement agreement. The record contains no copy

of the check for complainant's attorney's fees, pay stub, or other

concrete evidence that the agency complied with provision (III)(B)

of the settlement. Messages sent back and forth between the agency's

EEO officials and Human Resources (HR) office do not suffice to prove

that complainant received the attorney fees payment contemplated in the

settlement. Similarly, the agency only provides more messages between

the agency's EEO Office and HR to verify that complainant was reimbursed

16 days of sick leave, and paid for 4 teacher work days in accordance

with provision (III)(C). On remand, the agency must gather evidence

such as complainant's official leave record, pay stubs, check stubs, or

other documents reflecting the agency's reimbursement of complainant's

leave and payment for teacher school days.

CONCLUSION

Accordingly, the agency's decision denying any breach of the settlement

agreement is VACATED, and the matter is REMANDED for a supplemental

investigation as ordered below.

ORDER

The agency is ordered to perform the following:

Obtain a copy of the check, pay stub, financial records, or other

objective evidence to show complainant was provided $2,500.00 in attorney

fees, and was paid for 4 teacher school days. These records must be

added to the present complaint file.

Obtain all leave records, pay stubs, or other documents reflecting

whether the agency reimbursed complainant with 16 days of sick leave.

These records must be added to the present complaint file.

Obtain an official affidavit or statement from relevant officials

concerning the agency's compliance with provisions (III)(B) and

(III)(C) of the settlement agreement. These statements should include

a description of how and when complainant received the items required by

provisions (III)(B) and (III)(C). These statements also should include

an explanation of the records provided pursuant to provisions (1) and

(2) of this order. These affidavits or statements must be added to the

present complaint file.

Based on the information gathered in compliance with provisions (1) -

(3) of this order, the agency shall issue a new decision with appropriate

appeal rights concerning whether it breached provisions (III)(B) and

(III)(C) of the settlement agreement. The agency must provide complainant

with a copy of this decision within 30 days of the date this decision

becomes final. Additionally, the agency must provide the Compliance

Officer with a copy of the agency's decision as referenced herein.

IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)

Compliance with the Commission's corrective action is mandatory.

The agency shall submit its compliance report within thirty (30)

calendar days of the completion of all ordered corrective action. The

report shall be submitted to the Compliance Officer, Office of Federal

Operations, Equal Employment Opportunity Commission, P.O. Box 19848,

Washington, D.C. 20036. The agency's report must contain supporting

documentation, and the agency must send a copy of all submissions to

the complainant. If the agency does not comply with the Commission's

order, the complainant may petition the Commission for enforcement

of the order. 29 C.F.R. � 1614.503(a). The complainant also has the

right to file a civil action to enforce compliance with the Commission's

order prior to or following an administrative petition for enforcement.

See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g).

Alternatively, the complainant has the right to file a civil action on

the underlying complaint in accordance with the paragraph below entitled

"Right to File A Civil Action." 29 C.F.R. �� 1614.407 and 1614.408.

A civil action for enforcement or a civil action on the underlying

complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c)

(1994 & Supp. IV 1999). If the complainant files a civil action, the

administrative processing of the complaint, including any petition for

enforcement, will be terminated. See 29 C.F.R. � 1614.409.

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 (R0900)

This is a decision requiring the agency to continue its administrative

processing of your complaint. However, if you wish to file a civil

action, you have the right to file such action in an appropriate United

States District Court within ninety (90) calendar days from the date

that you receive this decision. In the alternative, you may file a

civil action after one hundred and eighty (180) calendar days of the date

you filed your complaint with the agency, or filed your appeal with the

Commission. 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. 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

October 7, 2003

__________________

Date