01990623
10-21-1999
Betys Greenspon, Appellant, v. Janet Reno, Attorney General, Department of Justice, Agency.
Betys Greenspon v. Department of Justice
01990623
October 21, 1999
Betys Greenspon, )
Appellant, )
)
v. ) Appeal No. 01990623
) Agency No. F974951
Janet Reno, )
Attorney General, )
Department of Justice, )
Agency. )
______________________________)
DECISION
On October 21, 1998, appellant filed a timely appeal with this Commission
from a final decision (FAD) by the agency dated September 24, 1998,
finding that it was in compliance with the terms of the June 25,
1998 settlement agreement into which the parties entered. See 29
C.F.R. ��1614.402, .504(b); EEOC Order No. 960, as amended.
The settlement agreement provided, in pertinent part, that:
(3)The parties agree that within a reasonable amount of time, not to
exceed sixty (60) days from the final signatory of this document, the
[agency] will adjust complainant's personnel records to indicate her
promotion to her current GS-13 position retroactive to the first full
pay period of September 1996, and that any subsequent within grade raises
will be adjusted accordingly. The Complainant agrees to waive any claim
to back pay or compensatory damages.
By letter to the agency dated September 15, 1998, appellant alleged that
the agency failed to meet its obligations as stated in the settlement
agreement in a timely manner. Specifically, appellant alleged that the
SF-50 issued on July 1, 1998, which canceled a previous promotion and the
ensuing within grade increase, contained the remark "[a]ction canceled
on EEO settlement, EC dated 6-25-1998," and therefore breached the
confidentiality requirement of the agreement. Appellant also asserted
that although she brought the matter to the attention of the agency,
no corrective action was taken within the specified time set out in the
settlement agreement. Additionally, appellant alleged that a "choice
of back wages or compensatory damages was granted by the settlement
agreement," and, after notifying the agency that she would waive
compensatory damages but not back wages, the agency failed to provide
back wages.
In its September 24, 1998 FAD,<1> the agency concluded that all the terms
of the agreement were implemented within the required time period, and
that there consequently was no breach of the settlement. The agency stated
that although the SF-50's executed on July 1, 1998 inadvertently contained
statements referencing the EEO settlement, it had clearly changed the
promotion date of the appellant within the 60-day time period, and that
later corrections removing the statements in no way affected that action.
The agency further noted that there was no specific confidentiality
requirement in the agreement. In addition, the agency also noted that
the agreement set forth that appellant waived "any claim to back pay or
compensatory damages," and did not state that she had a choice of back
wages or compensatory damages.
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 makes determinations about the parties'
intent in accordance with the plain, ordinary and common sense of the
words used in the agreement. Klein v. Department of Housing and Urban
Development, EEOC Request No. 05940033 (June 30, 1994).
In the instant case, we concur with the agency's determination that it
was in compliance with the settlement agreement. It is undisputed that,
despite later corrections to remove reference to the EEO settlement, the
agency adjusted the appellant's promotion date on her personnel records
within the 60-day time period required by the agreement. Moreover, the
agreement does not contain a confidentiality provision and, therefore,
the statements in the original SF-50's dated July 1, 1998, did not
constitute a breach of the settlement.
Additionally, we find that the agency has not breached the settlement
by its failure to provide back pay. As noted above, paragraph three of
the agreement clearly stated that the appellant "agrees to waive any
claim to back pay or compensatory damages." We find that the plain,
ordinary and common sense meaning of the words used in the agreement
indicate that appellant waived any claim for back pay, and that the
agreement did not provide appellant the option of choosing either back
wages or compensatory damages.
Accordingly, the agency's September 24, 1998 decision finding that it
was in compliance with the settlement agreement is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. In the alternative, you may file a
civil action AFTER ONE HUNDRED AND EIGHTY (180) CALENDAR DAYS of the date
you filed your complaint with the agency, or filed your appeal with the
Commission. 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. Filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1092)
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:
October 21, 1999
____________________________
DATE Carlton M. Hadden, Acting Director
1We note that on May 17, 1999, the agency inexplicably issued a second final
decision regarding appellant's allegations of breach again finding that it
was in compliance with the agreement.