Vivian E. Brown, Complainant,v.John W. Snow, Secretary, Department of the Treasury, Agency.

Equal Employment Opportunity CommissionNov 17, 2004
01A44188_r (E.E.O.C. Nov. 17, 2004)

01A44188_r

11-17-2004

Vivian E. Brown, Complainant, v. John W. Snow, Secretary, Department of the Treasury, Agency.


Vivian E. Brown v. Department of the Treasury

01A44188

November 17, 2004

.

Vivian E. Brown,

Complainant,

v.

John W. Snow,

Secretary,

Department of the Treasury,

Agency.

Appeal No. 01A44188

Agency No. 04-0006B

DECISION

Complainant filed an appeal with the Commission concerning her claim

that the agency was in breach of the terms of a May 1, 2003 settlement

agreement into which the parties entered. The settlement agreement,

in pertinent part, provided that:

The Agency will:

Raise the Average Critical Elements for the Complainant's annual

appraisal for the period ending September 30, 2001, to 4.66.

Raise the Average Critical Elements for the Complainant's annual

appraisal for the period ending September 30, 2002, to 4.66.

Grant the Complainant the appropriate awards for the above appraisals.

Reassign the Complainant to the Ford City Post of Duty, Group 8,

Chicago 3 Territory.

In a letter postmarked October 18, 2003, complainant alleged that the

agency was in breach of the terms of the May 1, 2003 settlement agreement.

Complainant acknowledged that she was assigned to the Ford City Post of

Duty since July 28, 2003. However, she stated that she has not received

the cash awards she was due from the 2001 and 2002 appraisals.

Complainant filed the present appeal on June 2, 2004, regarding her claim

of breach of the May 1, 2003 settlement agreement. The record contains a

July 27, 2004 letter from Person A, Director, Office of Equal Opportunity

and Diversity acknowledging the agency's receipt of complainant's appeal

to the Commission. The agency stated that since complainant appealed

to the Commission, prior to issuance of the agency's final decision,

it is closing this matter pending review by the Commission. The agency

has not issued a determination regarding the breach claim.

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).

Upon review, the Commission is unable to determine whether the agency

complied with provision 1. C of the May 1, 2003 agreement. According to

provision 1.C the agency agreed to grant complainant the appropriate

awards for the 2001 and 2002 performance appraisals that were amended

pursuant to provisions 1.A and 1.B of the agreement. There is no evidence

in the record indicating whether the agency provided complainant with

the appropriate awards for the relevant appraisal periods.

Accordingly, the matter is REMANDED to the agency for further processing

in accordance with the Order listed below.

ORDER

The agency shall take the following actions:

Place into the record evidence indicating whether it has complied with

provision 1.C of the May 1, 2003 settlement agreement. Specifically, the

agency shall provide personnel actions or other relevant documentation

showing that complainant was granted the appropriate awards for the

2001 and 2002 appraisal periods.

Within 30 days of the date this decision becomes final, the agency shall

issue a decision determining whether the agency breached the terms of

the settlement agreement. A copy of the agency's decision must be sent

to the Compliance Officer referenced herein.

IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)

Compliance with the Commission's corrective action is mandatory.

The agency shall submit its compliance report within thirty (30)

calendar days of the completion of all ordered corrective action. The

report shall be submitted to the Compliance Officer, Office of Federal

Operations, Equal Employment Opportunity Commission, P.O. Box 19848,

Washington, D.C. 20036. The agency's report must contain supporting

documentation, and the agency must send a copy of all submissions to

the complainant. If the agency does not comply with the Commission's

order, the complainant may petition the Commission for enforcement

of the order. 29 C.F.R. � 1614.503(a). The complainant also has the

right to file a civil action to enforce compliance with the Commission's

order prior to or following an administrative petition for enforcement.

See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g).

Alternatively, the complainant has the right to file a civil action on

the underlying complaint in accordance with the paragraph below entitled

"Right to File A Civil Action." 29 C.F.R. �� 1614.407 and 1614.408.

A civil action for enforcement or a civil action on the underlying

complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c)

(1994 & Supp. IV 1999). If the complainant files a civil action, the

administrative processing of the complaint, including any petition for

enforcement, will be terminated. See 29 C.F.R. � 1614.409.

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 (R0900)

This is a decision requiring the agency to continue its administrative

processing of your complaint. However, if you wish to file a civil

action, you have the right to file such action in an appropriate United

States District Court within ninety (90) calendar days from the date

that you receive this decision. 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 (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

November 17, 2004

__________________

Date