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