01981739
09-10-1999
Bonita Garrison, Appellant, v. Rodney E. Slater, Secretary, Department of Transportation, Agency.
Bonita Garrison, )
Appellant, )
)
v. ) Appeal No. 01981739
) Agency No. 2-93-0221
Rodney E. Slater, )
Secretary, )
Department of Transportation, )
Agency. )
_________________________________)
DECISION
Appellant filed the instant appeal from the agency's November 5, 1997
decision finding that the agency did not breach provision 2 of the
settlement agreement entered into by the parties on January 11, 1994.
Appellant's appeal only concerns provision 2 of the agreement. Therefore,
we find that the agency's decision regarding provision 4 of the agreement
is not at issue in this appeal.
Appellant's allegation that the agency breached provision 2 of the
settlement agreement was the subject of a Commission decision in Garrison
v. Department of Transportation, EEOC Appeal No. 01950426 (July 11,
1995) (this decision also addressed provision 4 of the agreement).
In EEOC Appeal No. 01950426 the Commission found:
The settlement agreement also provided:
The FAA agrees that it will retroactively afford Complainant a temporary
detail assignment to the position of Supervisory Air Traffic Control
Specialist, GM-2152-15, at the Washington Air Route Traffic Control
Center. The detail will be effective October 4, 1992, the date the
selected employee's detail became effective, and will be of the same
duration as the selected employee's detail to the position. The FAA
agrees to provide Complainant with back pay, including interest, for
the period of the detail.
Garrison, EEOC Appeal No. 01950426.
The Commission further found in EEOC Appeal No. 01950426:
By letter dated September 2, 1994 appellant informed the agency's
Director of Civil Rights that the agency had breached the settlement
agreement. Appellant alleged that the agency breached provision 2 of
the agreement by failing to award back pay. Appellant claimed that as
a result of the delay in payment of the back pay, appellant "incurred
additional expenses because of a loan she incurred to cover the back
pay she did not receive, as well as additional attorney fees."
. . . .
Appellant admits receiving the back pay and interest in her pay statement
for the period ending September 3, 1994. Appellant has not argued that
the agency incorrectly determined the amount of back pay and interest
due her under the settlement agreement. Appellant argues that the back
pay award was not made in a reasonable amount of time and that this delay
caused her to incur additional expenses. Provision 2 of the settlement
agreement did not provide a time limit for the agency to award the back
pay and interest. If appellant wanted the award of back pay and interest
to be made within some certain time, then she should have included such
a provision in the settlement agreement. See Eggleston, EEOC Request
No. 05900795. The Commission does not find the approximately eight month
period from the time the agreement was entered until the award of back
pay and interest to be unreasonable. Furthermore, appellant has not
claimed that she made any request for the back pay and interest prior
to her September 2, 1994 letter. Therefore, we find that the agency
did not breach the back pay and interest portion of provision 2 of the
settlement agreement.
Id. (brackets original in EEOC Appeal No. 01950426).
Appellant subsequently filed a request to reconsider the Commission's
decision and in Garrison v. Department of Transportation, EEOC Request
No. 05950867 (Apr. 24, 1997) the Commission reversed the Commission's
previous decision regarding provision 2 of the settlement agreement.
The Commission provided the following reasons for reversing the
Commission's previous decision concerning provision 2 of the agreement:
The Commission previously has held that when a settlement agreement does
not provide a time frame for the performance of the provisions therein,
performance nonetheless is required within a reasonable amount of time.
See Gomez v. Dep't of the Treasury, 05930921 (February 10, 1994).
. . . .
The Commission finds that the record is insufficient to allow a
determination as to whether the agency's 8-month delay (January 11,
1994 to approximately September 11, 1994) in making the backpay payment
to appellant was unreasonable. Consequently, the Commission reverses the
previous decision's finding that the agency had not breached provision
#2 of the settlement agreement, and remands the case for a supplemental
investigation.
Garrison, EEOC Request No. 05950867.
The Commission issued the following order in EEOC Request No. 05950867:
The agency shall conduct a supplemental investigation regarding the
reasons for its delay in making the backpay payment. Thereafter, the
agency shall issue a final decision as to whether it breached provision
#2 of the settlement agreement.
Id.
In the November 5, 1997 decision the agency found that the agency had
complied with provision 2 of the settlement agreement. The agency
found that provision 2 placed no time limit for payment of back pay
and interest. The agency found that the eight months it took the
agency to pay appellant the back pay and interest was not unreasonable.
The agency further noted that the agency's representative stated that
one of the reasons for the delay in the payment of back pay and interest
was that initially the agency did not have appellant's signature on the
settlement agreement.
EEOC Regulation 29 C.F.R. �1614.504(a) provides that any settlement
agreement knowingly and voluntarily agreed to by the parties shall be
binding on both parties. If the complainant believes that the agency
has failed to comply with the terms of a settlement agreement, then the
complainant shall notify the EEO Director of the alleged noncompliance
"within 30 days of when the complainant knew or should have known of
the alleged noncompliance." 29 C.F.R. �1614.504(a). The complainant
may request that the terms of the settlement agreement be specifically
implemented or request that the complaint be reinstated for further
processing from the point processing ceased. Id.
Settlement agreements are contracts between the appellant and the agency
and it is the intent of the parties as expressed in the contract, and not
some unexpressed intention, that controls the contract's construction.
Eggleston v. Department of Veterans Affairs, EEOC Request No. 05900795
(Aug. 23, 1990); In re Chicago & E.I. Ry. Co., 94 F.2d 296 (7th
Cir. 1938). In reviewing settlement agreements to determine if there is
a breach, the Commission is often required to ascertain the intent of the
parties and will generally rely on the plain meaning rule. Wong v. United
States Postal Service, EEOC Request No. 05931097 (Apr. 29, 1994) (citing
Hyon v. United States Postal Service, EEOC Request No. 05910787 (Dec. 2,
1991)). This rule states that if the writing appears to be plain and
unambiguous on its face, then its meaning must be determined from the
four corners of the instrument without any resort to extrinsic evidence
of any nature. Id. (citing Montgomery Elevator v. Building Engineering
Service, 730 F.2d 377 (5th Cir. 1984)).
The record contains a declaration dated October 8, 1997 from the agency
attorney who processed the settlement agreement. The agency attorney
stated:
One of the reasons for the delay in payment of backpay and interest was
that initially, the agency did not have the signature of [appellant]
on the settlement agreement. [Appellant's] attorney had signed the
settlement agreement on her behalf, but it took some time for the agency
to obtain her signature. The agency was unwilling to make the payment
of back pay until [appellant] had signed the settlement agreement.
I cannot recall when the agency received a copy of the settlement
agreement with [appellant's] signature on it. The agency's file on
this matter was retired to a records center, and the agency, despite a
diligent search, is unable to find the file.
The settlement agreement did not require the agency to provide the back
pay and interest within any particular period of time. Subsequent to
the issuance of the decision in EEOC Request No. 05950867 the Commission
held: "[G]iven that the settlement agreement did not place any specific
time limits on the agency, the fact that the provisions were not
implemented immediately does not constitute a breach of the agreement."
Northern v. United States Postal Serv., EEOC Request No. 05950774
(July 24, 1997). Appellant has not shown that the approximate eight
months from the time the settlement agreement was entered into until
the time the back pay and interest were provided was unreasonable.
Eight months is not, on its face, unreasonable in the instant matter.
The instant situation is distinguishable from a settlement agreement
that provided that an amount certain (e.g., $1,000.00) would be paid.
In the instant matter the agency must have had to make calculations to
determine the proper amount to be made (indeed, the agency makes such a
claim on appeal). The Commission finds that compliance with the back pay
and interest portion of provision 2 of the agreement in approximately
eight months after the agreement was entered into has not been shown
to be unreasonable and does not constitute a breach of the agreement.
Therefore, the Commission finds that appellant has failed to show that
the agency breached the settlement agreement. The agency's decision
finding that the agency did not breach the back pay and interest portion
of provision 2 of 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. �l6l4.604(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. 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 (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:
September 10, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations