01a00742
04-28-2000
Cheryl H. Newsome, Complainant, v. Lawrence H. Summers, Secretary, Department of the Treasury, Agency.
Cheryl H. Newsome, )
Complainant, )
)
v. ) Appeal No. 01A00742
Lawrence H. Summers, ) Agency No. 99-0018B
Secretary, )
Department of the Treasury, )
Agency. )
____________________________________)
DECISION
On October 15, 1999, complainant filed a timely appeal with this
Commission from an agency decision dated October 6, 1999, finding that
it was in compliance with the terms of the June 23, 1999 settlement
agreement into which the parties entered.<1>
The settlement agreement provided, in pertinent part, that:
(1) The AGENCY will:
By June 30, 1999, withdraw the reassignment memorandum, dated May 3,
1999.
. . . .
By July 15, 1999, furnish COMPLAINANT a departure rating from her
position of Chief, Examination V. The overall rating shall be a rating
of �fully successful.� COMPLAINANT will be provided with an AD HOC
appraisal after sixty (60) days from the reassignment date or at the
time COMPLAINANT applies for another position, whichever date is later.
Thereafter, COMPLAINANT will be evaluated in accordance with the NORD
agreement.
By letter to the agency dated August 13, 1999, complainant alleged that
the agency was in breach of the settlement agreement, and requested
that the agency specifically implement its terms. Specifically,
complainant stated that although the agency changed complainant's
performance evaluation to reflect a rating of �fully successful,� the
evaluator made reference to alleged comments by complainant which were
referred to the Director for resolution and ultimately lead to her
removal as Branch Chief. Complainant stated that these comments and
her ultimate reassignment from her Branch Chief position were resolved
by the present settlement agreement and claimed that the evaluator
breached the settlement agreement by referring to these comments in
complainant's evaluation. The evaluation stated that complainant's
ability to communicate while considering the impact of her statements on
others continues to be an area of concern. Complainant contends that
this statement, which notes that on at least one occasion complainant
did not perform at a fully satisfactory level of effectiveness due to
a lack of communication abilities, breaches the terms of the settlement
agreement.
In its October 6, 1999 decision, the agency noted that complainant
received a performance appraisal in which she was rated as meeting all
critical elements, which the agency stated was the equivalent to an
overall rating of �fully successful.� The agency further noted that the
settlement agreement is silent regarding narrative comments prepared by
the rating official.
The regulation set forth at 64 Fed. Reg. 37,644, 37,660 (1999) (to be
codified and hereinafter referred to as 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 the present case, we find that the agency has complied with provision
(D) of the settlement agreement. The record shows that complainant
received a performance appraisal with an overall rating of �fully
successful� as specified in the settlement agreement. We find no
indication the agency acted in bad faith in including the additional
comments on complainant's appraisal. Furthermore, we note that if
complainant wanted to prohibit additional comments on her appraisal, then
she should have included those express terms in the settlement agreement.
Thus, we find that complainant has failed to show the agency breached
the terms of the June 23, 1999 settlement agreement.
Accordingly, the agency's decision that it did not breach the settlement
agreement was proper and is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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); Equal Employment Opportunity Management
Directive for 29 C.F.R. Part 1614 (EEO MD-110), 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
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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)
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:
April 28, 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 1On 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.