0120123186
01-08-2013
Biancia Whitfield, Complainant, v. Leon E. Panetta, Secretary, Department of Defense (Defense Contract Management Agency), Agency.
Biancia Whitfield,
Complainant,
v.
Leon E. Panetta,
Secretary,
Department of Defense
(Defense Contract Management Agency),
Agency.
Appeal No. 0120123186
Agency No. YT-09-0010
DECISION
Complainant timely appealed to the Commission for a determination as to whether the Agency has complied with the terms of a May 10, 2012 settlement agreement. See 29 C.F.R. � 1614.402; 29 C.F.R. � 1614.504(b); and 29 C.F.R. � 1614.405.
BACKGROUND
On May 10, 2012, Complainant and the Agency entered into a settlement agreement to resolve a matter that had been pursued in the EEO complaint process. The settlement agreement provided, in pertinent part, that:
5. The Defense Department, by and through DCMA, will remove the Complainant's 2008 performance appraisal dated December 2008, from the employee's Official Personnel File (OPF).1
By letter to the Agency dated June 14, 2012, Complainant, through her attorney, alleged that the Agency breached provision 5. Specifically, Complainant alleged that the Agency failed to remove her 2008 performance appraisal from her OPF.
By e-mail dated June 28, 2012 to Complainant, the Equal Employment Complaints Manager stated that according to Human Capital Department, a review of Complainant's OPF showed no record of her 2008 performance appraisal. The Equal Employment Complaints Manager acknowledged that there was a possibility that Complainant's appraisal could appear in an electronic copy on a different system, but not in her OPF file. Furthermore, the Equal Employment Complaints Manager stated that the Human Capital Department was working to remove the electronic copy from the other source.
The record further reflects that in her email dated August 3, 2012, to her attorney, Complainant stated that she found a copy of her 2008 performance appraisal in her "My Biz" account of the DCPDS database.
On July 30, 2012, Complainant filed a Petition for Enforcement with the Commission stating that the Agency breached provision 5 when it failed to remove her 2008 performance appraisal from the Agency's electronic database. As a remedy, Complainant requested compensatory damages.
In response, the Agency found no breach of provision 5. The Agency argued that Complainant's argument is based "on an incorrect and expansive reading of the plain and literal terms of the settlement agreement." The Agency determined that the 2008 performance appraisal Complainant found in her My Biz account was in the DCPDS database which is the Employee Performance File Record System, a separate file from Complainant's OPF. The Agency stated that although the Agency was not in breach of provision 5, it nevertheless removed Complainant's 2008 performance appraisal from her My Biz account.
The instant appeal followed.
ANALYSIS AND FINDINGS
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. Dep't of Def., 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. Dep't 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. U.S. Postal Serv., 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).
Provision 5 provides for an affirmative Agency obligation to remove Complainant's 2008 performance appraisal from her OPF following the signing of the agreement. Complainant asserts, however, that the Agency should have removed her 2008 performance appraisal from all Agency files and database. If Complainant had wanted her 2008 performance appraisal removed from all agency files and database, she should have included such a provision as part of the subject agreement. See Jenkins-Nye v. General Services Administration, EEOC Appeal No. 01851903 (March 4, 1987).
The Agency's finding of no breach of provision 5 of the May 10, 2012 settlement agreement is supported by the record, was proper, and is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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 (S0610)
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 (Z0610)
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
January 8, 2013
__________________
Date
1 The settlement agreement also provides for the Agency to pay Complainant's attorney $25,000 in attorney's fees and legal costs. This provision is not at issue in the instant case.
---------------
------------------------------------------------------------
---------------
------------------------------------------------------------
2
0120123186
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120123186
5
0120123186