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.