01A30944_r
04-17-2003
Leona M. Stowe, Complainant, v. Thomas E. White, Secretary, Department of the Army, Agency.
Leona M. Stowe v. Department of the Army
01A30944
April 17, 2003
.
Leona M. Stowe,
Complainant,
v.
Thomas E. White,
Secretary,
Department of the Army,
Agency.
Appeal No. 01A30944
Agency No. AFBGFO0110B0410
DECISION
Complainant filed a timely appeal with this Commission from an agency
final decision dated October 29, 2002, finding no breach of the January
16, 2002 settlement agreement executed by the parties. The Commission
accepts the appeal. 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:
(1) The agency will also submit to the examining physician an SF 78,
Certificate of Medical Examination which the agency will fill out as
to the physical requirements of the WG-05, Explosives Handler, to be
used by the physician during his/her examination of [complainant] to
determine if she is medically able to perform the physical requirements
of the position. If the determination is negative, the agency has no
further requirements. Furthermore, the agency will hold a negative
determination made by the examining physician in confidence.
(2) If the physician's determination is positive, when and if an
Office of Personnel Management Certificate of Eligibles is issued to
fill Explosives Handler, WG-05 positions at CAAA, and provided that
[complainant] is in the range of selection, she will be selected for
the position, contingent upon passing a physical examination.
(3) The parties will exchange lists of physicians for the purpose of
mutually determining who would conduct an Army standard physical for
entry into the position within 10 days of the date of selection using
the SF 78. The selected physician has to be available to conduct the
physical within one week of notification by the agency.<1>
By letter to the agency dated September 15, 2002, complainant claimed
that the agency breached the above referenced terms of the settlement
agreement and requested specific performance. Specifically, complainant
claimed that she tendered a medical release to the agency's physician to
release her medical records for the medical examination in provision 1,
but that the agency failed to respond as of the end of August 2000.
In its October 29, 2002 decision, the agency determined the process
in provision 1 is currently underway, and that complainant may have
already scheduled the physician appointment, or even undergone the medical
examination �by now.� The agency noted that there is no time requirement
in provision 1. The agency further determined that its obligations
under provisions 2 and 3 did not yet arise because they are contingent
upon complainant obtaining a successful physician's determination of
her ability to perform the duties of the Explosives Handler position.
In responding to complainant's appeal, the agency submits a statement,
with supporting affidavit statements and pertinent documentation,
demonstrating that complainant underwent the medical examination
referenced in provision 1, at the agency's expense, and obtained
a successful determination. The agency argued that its obligations
under provisions 2 and 3 are contingent upon a Certificate of Eligibles
being issued for the position at issue, noting that this has not yet
occurred, but that when it does occur the agency is prepared to fulfill
its obligations under provisions 2 and 3.
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).
The Commission notes that on appeal, the agency submits sufficient
evidence to demonstrate its compliance with provision 1. Specifically,
the agency submits an affidavit from an official at its medical unit,
verifying that complainant underwent the referenced examination on
December 11, 2002, and that a report was sent to the agency on January 2,
2003. We also note documentary verification of the agency's payment for
this examination, including travel to and from the physician's office.
Although the agency provides no documentation regarding the outcome
of the examination, we note that in its appeal statement the agency
indicates that complainant obtained a successful report, satisfying the
first contingency that gives rise to its obligations under provisions
2 and 3. Moreover, although we find that the record shows that the
agency delayed in releasing complainant's medical records for the
examination, record evidence also demonstrates that this delay was
the result of an administrative oversight by the agency's physician,
and it did not disadvantage complainant's prospects under provisions 2
and 3. Accordingly, we find no breach of provision 1.
Regarding provisions 2 and 3, we concur with the agency that its has no
obligation until a Certificate of Eligibles is issued for the position
at issue. According to provision 2, further agency obligations only
arise �when and if� the referenced Certificate of Eligibles is issued.
As noted above, the agency avers that this had not yet occurred. However,
we note that the affidavit statement from a personnel official submitted
by the agency on appeal reflects that a vacancy announcement for the
position at issued closed on February 3, 2003, and that the referral list
(apparently meaning the Certificate of Eligibles) had not yet been issued.
Therefore, since neither the agency nor complainant have submitted any
up-dated documentation regarding this matter, we find that as of the
date of the agency's appeal statement (February 7, 2003), the record
demonstrates that the agency's obligations under provision 2 and 3 have
not yet arisen. Accordingly, we find no breach of provisions 2 and 3.
In conclusion, for the reasons set forth above, we find no breach of the
settlement agreement at issue, and we AFFIRM the agency's determination
that it complied with the settlement agreement.
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
April 17, 2003
__________________
Date
1These provisions appear as 3(c), 3(d), and 3(e), respectively, in the
Settlement Agreement at issue. They are renumbered herein for ease
of reference.