01a20865_r
04-10-2002
Sharon J. Hottenstein, Complainant, v. Dr. James G. Roche, Secretary, Department of the Air Force, Agency.
Sharon J. Hottenstein v. Department of the Air Force
01A20865
April 10, 2002
.
Sharon J. Hottenstein,
Complainant,
v.
Dr. James G. Roche,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 01A20865
Agency No. EL0R00009
DECISION
Upon review, the Commission finds that the agency's decision not to
reinstate complainant's complaint of unlawful employment discrimination
that the parties had settled is proper. See 29 C.F.R. � 1614.504.
The record indicates that on August 28, 2000, the parties entered into
a settlement agreement which provided, in pertinent part, that:
a) no reprisal action will be taken against the complainant;
in order to accommodate her disability (multiple sclerosis/pregnancy),
complainant's place of employment will be relocated from the 2nd floor
of the 3rd Civil Engineer's headquarters building (6326 Arctic Warrior),
to the first floor of that building, as close as possible, within the
available space, to the exit of the building which contains the handicap
ramp, until such time as her doctor deems her health sufficient to enable
her to climb stairs, and/or effective safety certified mechanical means
are in place to transport her to her place of employment.
On April 16, 2001, complainant alleged that the agency breached the
settlement agreement. Specifically, complainant indicated that on April
6, 2001, her supervisor told her that a lift, which complainant used to
get to the 2nd floor when she did not use the stairs, had been certified,
was safe, and told her to report to work on the 2nd floor on April 9,
2001. Complainant also indicated that on April 11, 2001, the lift broke
down while she was in it. Complainant also claimed that on February 28,
2001, she became aware that she was removed from the ABSS flow thereby
hindering her job, but she was reinstated into such after her complaint.
When the agency failed to respond to complainant's breach claim,
complainant filed the instant appeal. In response, the agency states that
after the settlement agreement, complainant was temporarily relocated to
the first floor until the lift could be serviced and returned to good
working condition. The agency indicates that the lift was certified
as safe in accordance with American National Standards Institute
(ANSI) standards, and complainant was then returned to the 2nd floor.
The agency also indicates that the lift did not work properly on the
date in question and complainant was returned to the 1st floor until it
was fixed on May 18, 2001. The agency asserts that on June 22, 2001,
complainant was told to report back to work on the 2nd floor. Based on
the foregoing, the agency concludes that it complied with the terms of
the settlement agreement.
EEOC Regulation 29 C.F.R. � 1614.504 provides that if the complainant
believes that the agency failed to comply with the terms of a settlement
agreement, the complainant should notify the Director of Equal Employment
Opportunity, in writing, of the alleged noncompliance with the settlement
agreement, within thirty (30) days of when the complainant knew or should
have known of the alleged noncompliance. The complainant may request that
the terms of the settlement agreement be specifically implemented or,
alternatively, that the complaint be reinstated for further processing
from the point processing ceased.
The agency shall resolve the matter and respond to the complainant,
in writing. If the agency has not responded to the complainant, in
writing, or if the complainant is not satisfied with the agency's attempt
to resolve the matter, the complainant may appeal to the Commission for
a determination as to whether the agency has complied with the terms of
the settlement agreement or final decision.
The Commission has held that 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 (August 23, 1990). In addition, the
Commission generally follows the rule that if a 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 v. Building Engineering Services,
730 F.2d 377 (5th Cir. 1984). The Commission has followed this rule
when interpreting settlement agreements. The Commission's policy in
this regard is based on the premise that the face of the agreement best
reflects the understanding of the parties.
After a review of the record, the Commission finds that the agency
complied with the settlement agreement. The record clearly indicates
that after the settlement agreement, complainant was relocated to the
1st floor until the lift was certified as safe in accordance with the
terms thereof. The Commission finds that the subsequent failure of
the lift is not covered under the settlement agreement. The Commission
notes that complainant's claim that subsequent acts of discrimination
(including reprisal) by the agency violated the settlement agreement
should be processed as a separate complaint under 29 C.F.R. � 1614.106
rather than as a claim of noncompliance with a settlement agreement.
See 29 C.F.R. � 1614.504(c). The record indicates that complainant has
filed a subsequent complaint concerning further discriminatory incidents,
including her removal from the ABSS flow, which is pending before the
agency. Accordingly, the agency's decision finding no breach of the
agreement is hereby AFFIRMED.
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
April 10, 2002
__________________
Date