Susan M. Frausto, Complainant,v.Ann M. Veneman, Secretary, Department of Agriculture, Agency.

Equal Employment Opportunity CommissionSep 11, 2002
01A11935_r (E.E.O.C. Sep. 11, 2002)

01A11935_r

09-11-2002

Susan M. Frausto, Complainant, v. Ann M. Veneman, Secretary, Department of Agriculture, Agency.


Susan M. Frausto v. United States Department of Agriculture

01A11935

September 11, 2002

.

Susan M. Frausto,

Complainant,

v.

Ann M. Veneman,

Secretary,

Department of Agriculture,

Agency.

Appeal No. 01A11935

Agency No. CR980139

DECISION

Complainant filed a timely appeal with this Commission from a final

decision (FAD) by the agency dated October 5, 2000, finding that it

was in compliance with the terms of a December 29, 1995 settlement

agreement. See 29 C.F.R. � 1614.402; 29 C.F.R. � 1614.504(b); and 29

C.F.R. � 1614.405.

The December 29, 1995 settlement agreement provided, in pertinent part,

that:

Management agrees to enforce the Annual Leave Policy equally and fairly

with all employees;

Management agrees to require and request sick leave certification in

accordance with Agency policy;

Management agrees to ensure that all FSIS employees in that particular

plant receive a memo, or other written correspondence that outline the

procedures and responsibilities of employees requesting permission to

leave their inspection station; and

Management agrees to provide EEO and Sexual Harassment training to

all FSIS personnel in that particular plant employees during Fiscal

Year 1996. A minimum of eight (8) hours will be given.

By letter to the agency dated March 7, 1996, complainant alleged that the

agency breached the settlement agreement, and requested that the agency

implement its terms. Regarding provision 1, complainant alleged that the

agency had unfairly applied its leave policy to her on January 9, 1996,

during a snow storm. Complainant alleged that the agency charged her

AWOL when she did not report for work, because she did not specifically

request leave in any of her three phone calls to the office on the date

in question. Complainant claimed that other employees made calls to the

office on the date in question and did not specifically request leave

but they were granted leave while complainant was not.

Regarding provision 4, complainant alleged that the agency failed to

provide EEO and sexual harassment training to all FSIS personnel.

In its FAD, the agency concluded that there was no breach of the

settlement agreement. The agency determined that provision 1 lacked

consideration, because providing complainant with the assurance that

agency management would enforce the Annual Leave Policy equally and

fairly with all employees did not provide complainant with anything

beyond that to which she was already entitled.

Regarding provision (4), the agency acknowledged that it did not

conduct this training during Fiscal Year 1996. The agency stated that

even though the promised training was not conducted in 1996, training

was provided as part of the agency-wide civil rights training given to

every employee in 1998 and 1999.<1>

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 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).

Provision (1)

The Commission determines that provision 1 assured that agency management

agreed to enforce its Annual Leave Policy equally and fairly with all

employees. This provision did not provide complainant with anything

beyond that to which she was already entitled. Complainant's claim of

breach of this provision should be processed as a separate complaint.

If complainant wishes to pursue this matter further, she is advised to

seek EEO counseling thereon.

Provision (4)

Regarding provision (4), the agency has acknowledged that it did

not provide the training identified therein during Fiscal Year 1996.

The record reflects that the agency determined that although training was

not provided in Fiscal Year 1996, all employees nevertheless received

training in 1998 and 1999. We find that while the agency initially

failed to comply with provision (4) of the settlement agreement, based

upon the training given in 1998 and 1999, the agency has cured the

prior breach such that there is no further remedial relief available to

complainant regarding this provision.

Accordingly, the agency's final decision is 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

September 11, 2002

__________________

Date

CERTIFICATE OF MAILING

For timeliness purposes, the Commission will presume that this decision

was received within five (5) calendar days after it was mailed. I certify

that this decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

__________________

Date

______________________________

1The record reflects that complainant resigned from agency employment

on or about June 3, 1996.