01991044
10-13-1999
Suzanne Smith, Appellant, v.
Suzanne Smith v. Department of Health and Human Services
01991044
October 13, 1999
Suzanne Smith, )
Appellant, )
)
v. ) Appeal No. 01991044
) Agency No. DEC ISSUE 9298
Donna E. Shalala, )
Secretary, )
Department of Health and )
Human Services, )
Agency. )
______________________________)
DECISION
On September 30, 1998, the appellant filed a timely appeal with this
Commission from a final decision (FAD) by the agency dated September 2,
1998, finding that it was in compliance with the terms of the April
24, 1998 settlement agreement into which the parties entered. See 29
C.F.R. ��1614.402, .504(b); EEOC Order No. 960, as amended.
The issue on appeal is whether the agency breached the settlement
agreement.
At least nine informal complaints filed by the appellant were resolved
by a Memorandum of Agreement (MOA) entered into on April 24, 1998.
The MOA provided, in relevant part, that:
...(2) The agency will provide a "neutral" reference for complainant to
prospective employers who contact the agency for reference information:
Dates of Complainant's employment with the agency (September 25, 1988,
through April 15, 1998).
Titles and grades of positions held by the Complainant while employed
by the agency (Microbiologist, GS-403-12, from September 25, 1988,
through December 11, 1990: and Microbiologist GS-403-13, from December
12, 1990, through April 15, 1998).
Last performance rating of record (Fully Successful).
The fact that Complainant voluntarily resigned from employment with
the agency effective April 15, 1998, for personal reasons.
No other employment data will be disclosed.
Previous to the MOA, the appellant had filed an appeal of her removal
to the Merit Systems Protection Board (MSPB). On April 15, 1998,
the parties entered into a settlement agreement (SA) to resolve their
dispute which provided in relevant part, that:
4. The agency will remove appellant's last rating of record from her
Official Personnel Folder (OPF). In the absence of a current rating
of record, the parties intend that the appellant's performance will be
presumed to have been rated "Satisfactory."
By letter to the agency dated June 23, 1998, the appellant requested
that either the agency provide a written 1995/1996 performance evaluation
with a rating of "Fully Successful" or that her prior EEO complaints be
reinstated. An agency memorandum dated July 14, 1998, by the Division
of Ethics and Labor Management Relations stated that the agency removed
the complainant's 1995/1996 performance evaluation from her OPF in
compliance with the April 16, 1998, MSPB SA. The agency further stated
that the April 24, 1998, MOA required it to provide prospective employers
only the following information: ...C) Last performance rating of record
(Fully Successful); therefore, the latest performance evaluation in the
complainant's OPF was for the 1994 period.
Subsequently, by letter dated August 29, 1998, the appellant alleged that
the agency's failure to provide her with both 1994/1995 and 1995/1996
written performance evaluations with a rating of "Fully Successful" was
a breach of the MOA. The appellant reiterated her request to have her
previous EEO complaints reinstated.
In its September 2, 1998 FAD, the agency concluded that it was in
compliance with the MOA and denied the complainant�s request to have her
prior EEO complaints reinstated. Specifically, the agency asserted that
it had not agreed to provide the complainant with a written performance
evaluation for the 1995/1996 rating period nor had the complainant so
requested.
Thereafter, the appellant timely filed the instant appeal. In response,
the agency asserts that its final decision to deny the appellant's
request for a written 1995/1996 performance evaluation and to reinstate
her prior EEO complaints is fully supported by the record.
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.
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 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 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).
In the instant case, the appellant alleged that the agency breached the
MOA by not providing her with written 1994/1995 and 1995/1996 performance
evaluations with "Fully Successful" ratings. The appellant asserts that
she does not consider the 1993/1994 performance evaluation to meet the
MOA term "Last performance rating of record (Fully Successful)."
We find that the record does not support the appellant's allegation
of breach. The MOA clearly does not require a written performance
evaluation for the 1995/1996 rating period. Further, we note that the
MSPB SA required the agency to remove the 1995/1996 performance rating
from the appellant's OPF. There is no evidence that either agreement
required the agency to write a new 1995/1996 performance evaluation.
Therefore, we find that the agency did not breach the MOA.
To the extent that the appellant is alleging that she entered into the
MOA under a mistake of fact, she must fail. Where only one party to
the contract makes a mistake, and the mistake was not known to the other
party, then the contract is not avoidable unless the other party induced
the mistake, except when: (1) the mistake is of so great a consequence
as to make enforcement of the contract unconscionable; (2) the mistake
relates to a material feature of the contract, and is made regardless
of the exercise of ordinary care; and (3) the recision of the contract
does not result in prejudice to the other party other than the loss of
his bargain. Shuman v. Navy, EEOC Request No. 05900744 (July 20, 1990).
The preponderant evidence here fails to support the appellant's contention
that the agency knew that she expected it to write a new 1995/1996
performance evaluation. Neither the plain language of the MOA requires
such an action by the agency, nor does the appellant point to someone
at the agency who knew or should have known that it was her intention
that the agency write a new 1995/1996 performance evaluation. Moreover,
the exercise of ordinary care requires that if the appellant expected a
new 1995/1996 performance evaluation be written, she should have reduced
that expectation to writing as part of the MOA. Therefore, we find that
the appellant has not shown that the agency induced the mistake, nor has
she shown that she meets the exception to the one party mistake rule.
Accordingly, the agency's final decision is hereby AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. 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:
Oct. 13, 1999
____________________________
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations