01a51343
03-07-2005
Rosalind A. Rush, Complainant, v. John W. Snow, Secretary, Department of the Treasury, Agency.
Rosalind A. Rush v. Department of the Treasury
01A51343
3/7/2005
.
Rosalind A. Rush,
Complainant,
v.
John W. Snow,
Secretary,
Department of the Treasury,
Agency.
Appeal No. 01A51343
Agency No. TD 00-2158TB
DECISION
Complainant filed a timely appeal with this Commission from a final
decision by the agency dated October 28, 2004, finding that it was in
compliance with the terms of a February 1, 2001 settlement agreement.
See 29 C.F.R. � 1614.402; 29 C.F.R. � 1614.504(b); and 29 C.F.R. �
1614.405.
The February 1, 2001 settlement agreement provided, in pertinent part,
that:
1(B) The agency will allow the complainant to serve in the Revenue
Officer Reviewer position for a period of time no less than three years
and not to exceed five years.
By letter to the agency dated October 13, 2004, complainant claimed breach
of provision 1(B), and requested that the agency specifically implement
its terms or reinstate her complaint from the point processing ceased.
Specifically, complainant claimed that the agency advised her that
she would be rotated out of the Reviewer position in February 2005.
Complainant further asserted that this would be �[thirteen] months shy
of the [five] year maximum assignment.� Complainant also stated that
other employees were allowed to complete their five year terms.
In its October 28, 2004 final decision, the agency concluded that it was
not in breach of provision 1(B). The agency stated that the settlement
agreement obligated the agency to place complainant in the Reviewer
position for �no less than three years and not to exceed five years.�
The agency further stated that it had complied with this provision of
the settlement agreement.
On appeal, complainant asserts that the agency's finding of no breach of
the settlement agreement is improper. Specifically, complainant states
that the agency engaged in reprisal by not allowing her to serve out
her maximum term as a Reviewer. In addition, complainant asserts that
she has been subjected to disparate treatment. Complainant states that
�[i]n some respect I have always been treated differently by the agency.
I was never allowed the opportunity to make presentations to groups that
requested them, nor was I selected to work on special projects while
all other members of my group did so.�
In response, the agency requests that we affirm its finding of no breach.
In addition, the agency asserts that it did not retaliate against
complainant by deciding to remove her from the Reviewer position.
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).
The Commission determines that the agency did not breach provision 1(B).
We agree with the agency's assertion that the settlement agreement did
not obligate the agency to place complainant in the Reviewer position
for five years. In her letter to the agency dated October 13, 2004,
complainant stated that the agency will be removing her from the Reviewer
position �[thirteen] months shy of the [five] year maximum assignment.�
Based on complainant's statement, she has been in the Reviewer position
for over three years; thus, we find that the agency is in substantial
compliance with provision 1(B) of the settlement agreement.
Moreover, we note that complainant claims that the agency engaged in
reprisal and disparate treatment. Pursuant to 29 C.F.R. � 1614.504(c),
claims that subsequent acts of discrimination violate a settlement
agreement shall be processed as a separate complaint under 29 C.F.R. �
1614.106. Therefore, these matters will not be addressed by the
Commission in the instant appeal.
Accordingly, we AFFIRM the agency's determination finding no breach of
the February 1, 2001 settlement agreement.
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
3/7/2005
Date