Betys Greenspon, Appellant,v.Janet Reno, Attorney General, Department of Justice, Agency.

Equal Employment Opportunity CommissionOct 21, 1999
01990623 (E.E.O.C. Oct. 21, 1999)

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.