0120070114
05-29-2008
Xi Dan, Complainant, v. Michael O Leavitt, Secretary, Department of Health and Human Services, Agency.
Xi Dan,
Complainant,
v.
Michael O Leavitt,
Secretary,
Department of Health and Human Services,
Agency.
Appeal No. 0120070114
Agency No. NCIEE020040014
DECISION
JURISDICTION
Complainant filed a timely appeal with this Commission from a final
decision (FAD) by the agency dated September 5, 2006, finding that it
was in compliance with the terms of the November 2, 2005 settlement
agreement into which the parties entered. See 29 C.F.R. � 1614.402;
29 C.F.R. � 1614.504(b); and 29 C.F.R. � 1614.405.
The settlement agreement provided, in pertinent part, that:
(5) If complainant returns to OCR upon the completion of her detail,
she understands that she will be placed in a permanent position of the
Agency's choosing in a work environment in Bethesda or Rockville which
is suitable for her skills, knowledge, and career development at the
same grade and pay as when she left NCI to begin the detail, with the
mutual understanding that she will not return to the Neuro-Oncology
branch under the supervision of [two named supervisors].
(12) The agency agrees to change the charge of AWOL for one and a
half hours on March 23, 2005 to leave without pay (LWOP) and expunge
all records reflecting the charge of AWOL for March 23, 2005.
(18) When contacted regarding complainant, [named official], will
provide the pre-agreed reference letter enclosed as appendix with this
settlement, and will make no further comment regarding complainant's
tenure with the Center for Cancer Research.
By letter to the agency dated August 4, 2006, complainant alleged that
the agency was in breach of the settlement agreement, and requested that
the agency specifically implement its terms. Specifically, complainant
alleged that the agency failed to place her in a position of the agency's
choosing, did not provide the reference letter, and did not expunge her
records.
In its September 5, 2006 FAD, the agency concluded it was in compliance
with the settlement agreement. The agency provided evidence that it
had placed complainant in a position in the CCR, laboratory of receptor
Biology and Gene Expression, Center for Cancer Research, National Cancer
Institute at the same pay and grade. However, complainant stated that
she was unable to do the job because of her medical condition. The agency
indicated that it was willing to work with complainant to determine if
she needed reasonable accommodation. The agency further provided copies
of the letter to be sent as a reference and provided an email certifying
that the AWOL was expunged. Complainant asserts these actions were done
in an untimely fashion.
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 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, regarding complainant's placement in the new
position, the Commission finds that the agency acted in accordance
with the settlement agreement. Neither the settlement agreement nor
the complaint on which it was based made mention of any disability or
medical condition. In addition, complainant does not explain what her
medical condition is, why the job into which she was placed does not meet
her medical restrictions, or what kind of accommodation she would need.
To that extent, the agency is obligated to work with complainant to
determine the appropriate reasonable accommodation and has indicated it
is doing so.
With respect to the issue of the agency not acting within the times frames
called for in the agreement, the Commission finds that no evidence has
been presented that such delays harmed complainant and the actions have
been accomplished regarding the change from AWOL to LWOP and the letter
of reference.
The Commission finds that the agency is in compliance with the settlement
agreement.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0408)
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 (S0408)
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 (Z0408)
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
May 29, 2008
__________________
Date
2
0120070114
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
4
0120070114