0120090257
03-31-2009
Anita L. Croxton, Complainant, v. Henry M. Paulson, Jr., Secretary, Department of the Treasury, Agency.
Anita L. Croxton,
Complainant,
v.
Henry M. Paulson, Jr.,
Secretary,
Department of the Treasury,
Agency.
Appeal No. 0120090257
Agency No. IRS-06-0498-F (formerly TD-06-2047)
DECISION
Complainant filed a timely appeal with this Commission from a final
decision by the agency dated September 11, 2008, finding that it was in
compliance with the terms of the April 24, 2007 settlement agreement
into which the parties entered. See 29 C.F.R. �� 1614.402; .405;
and .504(b).
The settlement agreement provided, in pertinent part, that:
1. The agency agrees:
A. To retroactively promote Complainant to a GS-2210-14 IT Specialist
position, post-of-duty (POD) Laguna Miguel, CA effective March 18, 2007.
The Agency further agrees to pay back pay in accordance with the Back
Pay Act of Act for the period from March 18, 2008[sic] until the date
this agreement becomes effective, subject to all necessary and required
withholdings, taxes, deductions and adjustments. . . .
7. This Agreement sets forth the entire agreement between the parties
hereto and supersedes and all prior agreements, understandings,
representations, written or oral, between the parties pertaining to the
subject matter hereof. No other promises or agreements shall be binding
upon the parties with respect to this subject matter unless contained
herein or separately agreed to in writing by the parties.
8. The Complainant acknowledges that she had sufficient time to
consider the conditions and terms of this agreement, and seek counsel
from her representative. The Complainant further agrees that she has
discussed this agreement with her representative, has read the agreement,
understands its terms and conditions, and voluntarily enters into this
agreement, without coercion or duress from any party.
9. The parties understand that the executed agreement will be forwarded
to the Discrimination Complaint Review Unit (DCRU) for the required
review under Section 1203(b)(3)(B) of the Restructuring and Reform Act
of 1998, and that either party to the agreement may be contacted by the
DCRU about the settlement agreement and/or the circumstances leading up
to the complaint during the course of this review. The Complainant may
not reopen the complaint, initiate any administrative appeals, or obtain
additional remedial relief on the matters raised in the complaint based
on the DCRU review of the settlement agreement or underlying complaint.
By letter to the agency dated July 19, 2008, 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 breached paragraph (1)(a) when it moved her from
management status to bargaining unit status and thereby reduced her pay,
status privileges, award compensation and developmental opportunities;
although such change was not part of the settlement agreement.
Complainant stated that, during settlement discussions, the intent was
to place her in an IR-04 or Grade 14 position, but the term "GS-14"
was used because agency counsel was unfamiliar with the other terms.
Complainant acknowledged that the agency attempted to address the harm and
issued a Quality Step Increase (QSI) in lieu of a pay-band increase and
cash award, but added that she has taken a financial loss of $3485.00.
Complainant stated further that the agency violated paragraph (9) of
the agreement when it failed to forward the settlement agreement for
neutral third party review to the Discrimination Complaint Review Unit
(DCRU). Complainant asks for reinstatement of her complaint for further
processing.
In its September 11, 2008 final decision, the agency concluded that it
did not breach the April 24, 2007 settlement agreement. It stated that
paragraph (1)(a) does not address a QSI or cash award and complainant had
the opportunity to bargain for additional compensation at settlement;
and that any agreement on December 27, 2007 is separate from the
instant settlement agreement. As to paragraph (9), the agency stated
said provision simply informs both parties that the agreement will be
forwarded for review but does not guarantee review by DCRU and prohibits
further relief.
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 April 24 agreement. Specifically, we find
that complainant's contentions suggest that she is unhappy with the
agreement as written and seeks to adjust its terms. We conclude that
she is really grieving a subsequently-given, reduced performance award
and that such would be a new and separate claim of discrimination. Thus,
complainant is advised to contact an EEO Counselor if she wishes to
pursue that matter through the EEO process.
Further, as to provision (9), the Commission has previously found
substantial compliance with the terms of a settlement agreement in
cases where agencies have committed, in good faith, a technical breach
of a provision of the agreement which did not undermine its purpose or
effect. See Sortino v. U. S. Postal Service, EEOC Request No. 05950721
(November 21, 1996) (citing Baron v. Dep't of the Treasury, EEOC Request
No. 05930277 (September 30, 1993)). We find such to be the case here.
Lastly, we note that, if we found breach, to grant complainant's request
of complaint reinstatement, status quo ante would apply. The state
of affairs prior to the settlement agreement would have to return and
complainant would have to return any monies or benefits received as a
result of the agreement. Based on the above, we AFFIRM the final agency
decision.
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
March 31, 2009
__________________
Date
2
0120090257
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
5
0120090257