0120091716
07-23-2009
Barbara A. Seymore, Complainant, v. Pete Geren, Secretary, Department of the Army, Agency.
Barbara A. Seymore,
Complainant,
v.
Pete Geren,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120091716
Agency No. ARUSAR08JUL2793
DECISION
Complainant filed a timely appeal with this Commission from a final
decision (FAD) by the agency dated February 17, 2009, finding that it
was in compliance with the terms of the December 4, 2008 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:
(1) The agency shall keep complainant on the rolls of this Agency in
a paid Administrative Leave status from December 4, 2008 until February
20. 2009.
(2) Prior to February 20, 2009, complainant will file for retirement
from the Federal
Government, said retirement to be effective on or about February
20, 2009.
(3) The agency shall give complainant a fully successful appraisal
(Block 3) for her last appraisal to be accomplished within 30 days of
the date of the last signature to this agreement
By letter to the agency dated January 27, 2009, complainant alleged that
the agency was in breach of the settlement agreement. Specifically,
complainant alleged that the agency failed to provide the appraisal
within 30 days of the date of the agreement.
In its February 17, 2009 FAD, the agency concluded it failed to comply
within the 30 days. However, the agency noted that the appraisal was
completed some 17 days after the 30 day period. Further, the agency noted
that complainant failed to have her retirement effective on February 20,
2009.
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, the agency admits to failing to comply within the
timeframe listed in the settlement agreement. However, the agency did
comply within some 47 days of finalizing the agreement. We note that
the agency did not comply within the time frame established within the
settlement agreement. Nevertheless, we have held that the failure to
satisfy a time frame specified in a settlement agreement does not prevent
a finding of substantial compliance of its terms, especially when all
required actions were subsequently completed. Lazarte v. Dept. of the
Interior, EEOC Appeal No. 01954274 (April 25, 1996); Sortino v. United
States Postal Serv., EEOC Request No. 05950721 (November 21, 1006),
(citing Baron v. Dept. of the Treasury, EEOC Request No. 05930277
(September 30, 1993) (Two week delay in transfer of official letter of
regret rather than letter of apology found to be substantial compliance));
Centore v. Dept. of Veterans Affairs, Appeal No. 01A04637 (November
2, 2000) (A few days after sixty day time period for compliance not
a material breach of settlement agreement). In this matter, we find
no evidence in the record that the agency's delay in complying with
settlement agreement was the result of bad faith or undermined the
purpose or effect of the agreement.
CONCLUSION
Therefore, upon review of the record, the Commission affirms the agency's
letter of determination finding no breach of the settlement agreement.
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
July 23, 2009
__________________
Date
2
0120091716
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
4
0120091716