01976484
12-10-1999
Rita A. Doakes, Complainant, v. Lawrence H. Summers, Secretary, Department of the Treasury, Agency.
Rita A. Doakes, )
Complainant, )
)
v. ) Appeal No. 01976484
)
Lawrence H. Summers, )
Secretary, )
Department of the Treasury, )
Agency. )
_______________________________ )
DECISION
Complainant filed the instant appeal from the agency's July 25, 1997
decision concerning complainant's claim that the agency breached the
settlement agreement dated February 4, 1997.<1> The settlement agreement
provided in part that the agency would:
[1]A. Reissue a new employee performance appraisal (Form 23601-1) with
the same rating of record. Part III of the appraisals will contain no
narrative comments. Remove the old appraisal dated November of 1996 from
the official performance files in both the Fort Worth and Washington,
DC offices, and replace with the revised appraisal.
Remove and destroy the mid-year appraisal dated May of 1996, from
the supervisor's file.
Recommend the review of the Complainant's position of Workmen's
Compensation Technician, GS-303-7, 90 days from December 2, 1996,
the manager will forward the results of the job review to Personnel
for action.
Complainant alleged that she had no evidence showing that the agency had
complied with provision 1(B) and she alleged that the agency breached
provision 1(C). In the July 25, 1997 decision the agency found that
the agency had complied with provision 1(B). The agency also found:
With respect to Item 1C of the settlement agreement, the record shows
that the position was not reviewed within 90 days, and therefore BEP
[Bureau of Engraving and Printing] officials did not comply with Item 1C.
However, we cannot order compliance because the position no longer exists.
In addition, because BEP has cured the issues raised in complaints 97-2070
and 96-2241, which relate to Items 1A and 1B of the settlement agreement,
we find that both complaints are moot. Therefore, it is inappropriate
to reinstate the complaints for further processing. . . .
The regulation set forth at 64 Fed. Reg 37,644, 37,660 (1999) (to be
codified as and hereinafter cited as 29 C.F.R. � 1614.504(a)) provides
that any settlement agreement knowingly and voluntarily agreed to by the
parties shall be binding on both parties. If the complainant believes
that the agency has failed to comply with the terms of a settlement
agreement, then the complainant shall notify the EEO Director of the
alleged noncompliance "within 30 days of when the complainant knew or
should have known of the alleged noncompliance." 29 C.F.R.
� 1614.504(a). The complainant may request that the terms of the
settlement agreement be specifically implemented or request that the
complaint be reinstated for further processing from the point processing
ceased. Id.
Settlement agreements are contracts between the complainant and the agency
and it is the intent of the parties as expressed in the contract, and not
some unexpressed intention, that controls the contract's construction.
Eggleston v. Department of Veterans Affairs, EEOC Request No. 05900795
(Aug. 23, 1990); In re Chicago & E.I. Ry. Co., 94 F.2d 296 (7th
Cir. 1938). In reviewing settlement agreements to determine if there is
a breach, the Commission is often required to ascertain the intent of the
parties and will generally rely on the plain meaning rule. Wong v. United
States Postal Service, EEOC Request No. 05931097 (Apr. 29, 1994) (citing
Hyon v. United States Postal Service, EEOC Request No. 05910787 (Dec. 2,
1991)). This rule states that if the writing appears to be plain and
unambiguous on its face, then its meaning must be determined from the
four corners of the instrument without any resort to extrinsic evidence
of any nature. Id. (citing Montgomery Elevator v. Building Engineering
Service, 730 F.2d 377 (5th Cir. 1984)).
The Commission finds that the agency has admitted that it has not
complied with provision 1(C) of the settlement agreement. The agency has
not argued that it was unable to comply, during the time frame set forth
in provision 1(C), with provision 1(C) because of actions by complainant
or because of any changed circumstances. Therefore, we find that the
agency breached provision 1(C) of the settlement agreement.
The agency states that it can not now comply with the settlement
agreement. In her letter dated April 15, 1997 describing her breach
allegations complainant requested that her settled complaints be
reinstated. The Commission finds that the most appropriate remedy for our
finding of breach in the instant matter is reinstatement of the underlying
complaints. Therefore, we shall order the agency to reinstate the settled
complaints for further processing from the point processing ceased.
29 C.F.R. � 1614.504(c). Because of our disposition we do not address
whether the agency breached provision 1(B) of the settlement agreement.
The agency also found that the settled complaints were moot. The agency,
however, did not explicitly state that it was dismissing the underlying
complaints. On appeal, complainant has not addressed whether the
underlying complaints are moot; rather, complainant only addressed
the breach claims. The Commission finds that complainant has not been
given sufficient and clear notice that the underlying complaints were
being dismissed as moot. For the Commission to consider whether the
underlying complaints are moot in the instant circumstances would deny
complainant due process. Therefore, we shall not consider the question
of mootness in the instant decision. If the agency still believes the
underlying complaints are moot, then it may reissue a decision clearly
identifying the claims being dismissed, clearly identifying the reasons
for the dismissal, and providing appeal rights to the Commission.
The Commission finds that the agency breached provision 1(C) of the
settlement agreement.
ORDER
The agency shall, within 30 days of the date this decision becomes
final, reinstate the settled complaints for further processing from the
point processing ceased. The agency shall send a letter to complainant
informing her that the settled complaints are being reinstated. A copy
of the agency's letter reinstating the complaints must be sent to the
Compliance Officer referenced herein.
ATTORNEY'S FEES (H1199)
If complainant has been represented by an attorney (as defined by 64
Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. �1614.501(e)(1)(iii)), he/she is entitled to
an award of reasonable attorney's fees incurred in the processing of the
complaint. 29 C.F.R. �1614.501(e). The award of attorney's fees shall
be paid by the agency. The attorney shall submit a verified statement of
fees to the agency -- not to the Equal Employment Opportunity Commission,
Office of Federal Operations -- within thirty (30) calendar days of this
decision becoming final. The agency shall then process the claim for
attorney's fees in accordance with 29 C.F.R. �1614.501.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K1199)
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 64 Fed. Reg. 37,644, 37,659-60 (1999) (to be
codified and hereinafter referred to as 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)(Supp. V 1993). If the complainant
files a civil action, the administrative processing of the complaint,
including any petition for enforcement, will be terminated. See 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 29 C.F.R. �1614.409).
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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). 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).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (R1199)
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 (Z1092)
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:
December 10, 1999
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.