01994230
01-06-2000
Catherine E. Smith, Complainant, v. Rodney E. Slater, Secretary, Department of Transportation, Agency.
Catherine E. Smith, )
Complainant, )
)
v. ) Appeal No. 01994230
) Agency No. DOT 6-98-6011R
Rodney E. Slater, )
Secretary, )
Department of Transportation, )
Agency. )
______________________________)
DECISION
On April 24, 1999, complainant filed a timely appeal with this Commission
from a final decision (FAD) by the agency received on March 30, 1999,
finding that it was in compliance with the terms of the December 1,
1995 settlement agreement into which the parties entered. See 64
Fed. Reg. 37,644, 37,659, 37,660 (1999)(to be codified and hereinafter
referred to as EEOC Regulation 29 C.F.R. � 1614.402); 29 C.F.R. �
1614.504(b); EEOC Order No. 960, as amended.<1>
The settlement agreement provided, in pertinent part, that the agency
would:
(1) maintain practices that promote fair and equal treatment to all
its employees regardless and demonstrate this through its management
practices;
(2) reassign the aggrieved person on the regional responsibilities and
duties for the �Share-the-Road� program; and
(3) include the aggrieved person in other OMC activities to enhance the
career
opportunities if a promotion opportunity occurs. These activities
may include such projects as (1) assist on quality case reports, (2)
assists on reviews, (3) assist on special road checks and (4) attend
training to keep abreast on regulations.
On August 5, 1997, complainant contacted an EEO Counselor and alleged
that the agency was in breach of the settlement agreement. Specifically,
complainant alleged that the agency violated the agreement when her
supervisor removed her from the �Share-the-Road� program.
In its March 30, 1999 FAD, the agency concluded that it did not violate
the settlement agreement entered into on December 1, 1995, because the
agreement did not specifically state complainant would remain in the
�Share-the-Road� program indefinitely.
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).
In the case at bar, the language of the settlement agreement is clear and
unambiguous. Therefore, in interpreting the agreement, the Commission
will apply the four corners doctrine. After close analysis of the
settlement agreement, the Commission finds that it does not provide
for a specific time period in which complainant would remain on the
�Share-the-Road� program. The Commission has held that if a settlement
agreement does not include specific duration terms for the employment
relationship, which could have been agreed upon, it would be improper to
interpret the reasonable intentions of the parties as binding the agency
to the terms thereof forever. See Parker v. Department of Defense, EEOC
Request No. 05910576 (August 30, 1991) (agreement that did not specify
length of service for position to which complainant was promoted, was
not breached by the temporary detail of complainant two years after the
execution of the agreement).
Here, complainant alleged that the agency failed to comply with the
terms of the settlement agreement when she was temporarily removed
from her position in the �Share-the-Road� program for approximately
two weeks. Under the circumstances before us, we find that when the
agency temporarily removed complainant, it did not breach the settlement
agreement since it occurred beyond a reasonable time period during which
the agency was contractually required to maintain complainant in that
position. In addition, we note that complainant was only temporarily
removed from her position. Since her reappointment approximately
two weeks later, she has remained in the �Share the Road� program.
Based on the foregoing, the Commission finds that the agency did not
breach the terms of the settlement agreement. Accordingly, the agency's
decision finding no breach of the settlement agreement was proper and
is AFFIRMED.
As a final matter, the Commission notes that complainant also appears
to be making allegations on appeal regarding harassment and retaliation
by the agency. Complainant is advised that if she wishes to pursue
these allegations through the EEO process, she must contact an EEO
Counselor. Under EEOC Regulation 29 C.F.R. �1614.504(c), an allegation
that a subsequent act of discrimination violates a settlement agreement
is properly processed under 64 Fed. Reg. 37,644, 37,656 (1999) ( to
be codified at 29 C.F.R. �1614.106), not as a breach of the settlement
agreement.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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
64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. � 1614.405). All requests and arguments must 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
timely filed if it is received by mail within five days of the expiration
of the applicable filing period. See 64 Fed. Reg. 37,644, 37,661 (1999)
(to be codified and hereinafter referred to as 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 (S1199)
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 (Z1199)
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:
January 6, 2000
____________________________
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_______________ __________________________
Date Equal Employment Assistant1On November 9, 1999, revised
regulations governing the EEOC's federal sector complaint process
went into effect. These regulations apply to all federal sector
EEO complaints pending at any stage in the administrative process.
Consequently, the Commission will apply the revised regulations found
at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at WWW.EEOC.GOV.