Andrea M. Tucker, Complainant,v.Timothy F. Geithner, Secretary, Department of the Treasury, Agency.

Equal Employment Opportunity CommissionAug 27, 2009
0120091970 (E.E.O.C. Aug. 27, 2009)

0120091970

08-27-2009

Andrea M. Tucker, Complainant, v. Timothy F. Geithner, Secretary, Department of the Treasury, Agency.


Andrea M. Tucker,

Complainant,

v.

Timothy F. Geithner,

Secretary,

Department of the Treasury,

Agency.

Appeal No. 0120091970

Agency No. IRS-08-0621

DECISION

Complainant filed a timely appeal with this Commission from a final

agency decision dated March 5, 2009, finding that it was in compliance

with the terms of the August 29, 2008 settlement agreement into which

the parties entered. See 29 C.F.R. �� 1614.402; 1614.405 & 1614.504(b).

The settlement agreement provided, in pertinent part, that:

(a) No later than September 15, 2008, Territory Manager will initiate

paperwork to reassign [complainant] to Small Business/Self Employed,

Collection, Califomia Santa Ana, Group 36. [Complainant] will take the

inventory assigned to her as of August 29, 2008 to the new group.

(b) No later than September 15, 2008 prepare a departure Rating

showing an overall rating of 3.8.

By letter to the agency dated October 10, 2008, complainant alleged

that the agency was in breach of the settlement agreement, and requested

that the agency reinstate her underlying EEO complaint. Specifically,

complainant alleged that her requests for case approval and closure were

inappropriately routed to her former group manager (S1), instead of her

new manager, and S1 disapproved them. Further, complainant stated that

S1 had improper authority to assign her cases until October 3, 2008 and

to review her trust fund cases through November 13, 2008, although she

requested a transfer of said authority under the settlement agreement.

In its March 5, 2009 final decision, the agency found that it is in at

least substantial compliance with the August 29 agreement. The agency

stated that, about September 15, complainant was assigned to another group

and that S1 was unaware that he had to take action to prevent the case

computer system from forwarding complainant's work to him. The agency

stated that S1 generally ignored the prompts to review complainant's

work except once, on September 26, 2008, when he disapproved her case

for lack of important information. Complainant's new supervisor (S2)

stated that she is aware of only two cases that S1 assigned complainant

and that was on September 2 because the cases were originally assigned

to complainant and then temporarily assigned to another Revenue Officer.

Further, the agency stated that complainant failed to show that routing

to S1 after her September 15 reassignment to S2's group was anything but

inadvertent and or that it negatively affected her. The agency stated

that it complied with the plain language of the agreement. The instant

appeal from complainant followed.

On appeal, complainant stated that S1 continued to act as her supervisor

beyond September 15, 2008 and that any concerns he held regarding her

cases should have been directed at S2 rather than disapproved.

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, we agree with the agency and find that, based on

"the plain meaning rule," complainant has failed to establish that the

agency breached the August 29 agreement. Specifically, we find that

complainant's contentions suggest that she is unhappy with the agreement

as written and seeks to adjust its terms. The agreement states that the

Territory Manager will initiate reassignment paperwork on September 15,

2008 and that complainant will take the inventory she has as of August 29

to her new group. The agreement does not address the actions complainant

alleged. Her allegations are new matters and she is advised to contact

an EEO Counselor if she wishes to pursue them through the EEO process.

We AFFIRM the final agency decision finding compliance.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M1208)

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 77960,

Washington, DC 20013. 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 (Z1008)

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 from the Court that

the Court appoint an attorney to represent you and that the Court also

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 with

the Court 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

August 27, 2009

__________________

Date

2

0120091970

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

4

0120091970