Cheryl J. Braziel, Appellant,v.Louis Caldera, Secretary, Department of the Army, Agency.

Equal Employment Opportunity CommissionJan 19, 1999
01975942 (E.E.O.C. Jan. 19, 1999)

01975942

01-19-1999

Cheryl J. Braziel, Appellant, v. Louis Caldera, Secretary, Department of the Army, Agency.


Cheryl J. Braziel v. Department of the Army

01975942

January 19, 1999

Cheryl J. Braziel, )

Appellant, )

)

v. ) Appeal No. 01975942

)

Louis Caldera, )

Secretary, )

Department of the Army, )

Agency. )

_________________________________)

DECISION

Appellant filed the instant appeal on July 24, 1997 alleging that the

agency breached a settlement agreement dated January 3, 1994.

BACKGROUND

The parties entered into a settlement agreement dated January 3, 1994

purporting to settle EEO complaints filed by appellant. The settlement

agreement provided in relevant part:

3. The Army agrees:

. . . .

To retroactively promote Complainant to GS-13 effective July 2, 1994.

. . . .

(e)(1) To instruct Complainant's present and past supervisors and

any other District employees who, upon her request, agree to serve as

references for Complainant, that all requests for employment references

be directed to [Person A or Person B] who shall provide the following

information to prospective employers, only upon receipt of oral or

written requests from [complainant]:

[Complainant] was employed by the Savannah District Corps of Engineers

from September 1987 . . .

The above sub-paragraph may be excepted, in part, upon [complainant's]

resignation as set forth in paragraph 4 of this agreement.

By letter dated February 8, 1996 appellant informed the agency that

the agency had breached the settlement agreement. On April 10, 1996

the agency issued a decision concerning the breach allegations. In the

April 10, 1996 decision the agency found that appellant had alleged that

the agency had breached provisions 3(e)(1) and 3(e)(2) of the settlement

agreement. The agency found in the April 10, 1996 decision that "the

agency has not had an opportunity to implement the terms specified

under paragraphs 3e(1) and (2) of the negotiated settlement agreement."

The agency concluded that the agency "has not failed to comply with the

terms agreed upon."

Appellant subsequently filed a civil action dated July 15, 1996 against

the agency in the United States District Court for the Southern District

of Georgia. In the civil action appellant alleged that the agency

breached provision 3(e) of the settlement agreement. On January 30,

1997 the Chief Judge, United States District Court, Southern District

of Georgia, issued a Minute Order holding:

Based upon the representations of counsel, this case is hereby dismissed

without prejudice, pending the forthcoming dismissal with prejudice.

The Clerk is directed to close this matter.

By letter dated March 7, 1997 appellant informed the agency that it had

breached the settlement agreement by: (1) violating provision 3(c) of

the agreement; (2) violating provision 3(e) of the agreement on January

11, 1997; and (3) retaliating against appellant. Appellant also claimed

that the agreement (emphasis omitted) "was breached during negotiations,

thereby resulting in a fraudulent contract agreement."

By letter dated June 9, 1997 the agency informed appellant that it

was denying appellant's March 7, 1997 request to reopen her complaint.

The agency denied appellant's request on the grounds that the breach

allegations were already decided by the agency on April 10, 1996 and

because the issues of noncompliance were the subject of appellant's

civil action in a federal district court. The instant appeal is from

the June 9, 1997 agency letter.

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 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)).

As an initial matter the agency claims on appeal that the June 9, 1997

letter is not a decision. The Commission disagrees. Appellant informed

the agency by letter dated March 7, 1997 that the agency had breached the

agreement. The June 9, 1997 letter from the agency informed appellant

that appellant's request to reinstate the complaint was being denied.

Therefore, we find that the June 9, 1997 letter is effectively a decision

finding that the agency did not breach the agreement and/or is effectively

a decision dismissing appellant's breach allegation.

The agency argues that if the June 9, 1997 letter is a decision, then

appellant's appeal was untimely. The Commission finds that appellant's

appeal was timely because the agency did not provide appeal rights to

the Commission in the June 9, 1997 decision. Therefore, we find the 30

day timeframe should be extended and appellant's appeal is timely.

The agency found that the instant breach allegations were decided by

the agency in the April 10, 1996 decision. The Commission disagrees.

The April 10, 1996 decision did not consider whether the agency breached

provision 3(c). Furthermore, the April 10, 1996 decision did not consider

whether the agency breached provision 3(e) on January 11, 1997 - a date

of incident purportedly occurring after the April 10, 1996 decision

was issued. Although there are no references to issues of retaliation

in the April 10, 1996 decision, the Commission notes that �1614.504(c)

provides that allegations that subsequent acts of discrimination violate

a settlement agreement shall be processed as a separate complaint under

�1614.106 rather than as a breach allegation. Therefore, if appellant

wants to pursue an allegation of discrimination she must contact an EEO

Counselor if she has not already made such contact. The Commission does

not now consider the timeliness of such allegations. The Commission finds

that the breach allegations concerning provisions 3(c) and 3(e) raised in

the March 7, 1997 letter were not decided in the April 10, 1996 decision.

The Commission also finds that the civil action did not encompass any

allegation concerning provision 3(c) of the agreement. Furthermore,

because the January 11, 1997 incident arose after the date of signature

on the civil action, we find no indication that the allegation that

provision 3(e) was violated on January 11, 1997 was raised in the civil

action.

Because the agency has not addressed whether the agency breached

provision 3(c) or provision 3(e) (incident on January 11, 1997) we shall

remand the matter so that the agency may supplement the record with

evidence showing whether the agency has complied with provision 3(c)

and provision 3(e) (incident on January 11, 1997) of the agreement.

Because of our disposition we do not address appellant's apparent claim

that the agreement was entered into in bad faith by the agency.

The agency's decision finding that the settlement agreement has not been

breached is VACATED and we REMAND the matter to the agency for further

processing in accordance with this decision and applicable regulations.

ORDER

The agency shall supplement the record with the evidence in order to show

that the agency has complied with provisions 3(c) and 3(e) (incident on

January 11, 1997) of the settlement agreement. Within 30 days of the

date this decision becomes final the agency shall issue a new decision

determining whether the agency breached provisions 3(c) and 3(e) of the

settlement agreement. A copy of the agency's new decision must be sent

to the Compliance Officer referenced herein.

IMPLEMENTATION OF THE COMMISSION'S DECISION (K0595)

Compliance with the Commission's corrective action is mandatory.

The agency shall submit its compliance report within thirty (30)

calendar days of the completion of all ordered corrective action. The

report shall be submitted to the Compliance Officer, Office of Federal

Operations, Equal Employment Opportunity Commission, P.O. Box 19848,

Washington, D.C. 20036. The agency's report must contain supporting

documentation, and the agency must send a copy of all submissions to

the appellant. If the agency does not comply with the Commission's

order, the appellant may petition the Commission for enforcement of

the order. 29 C.F.R. �1614.503 (a). The appellant also has the right

to file a civil action to enforce compliance with the Commission's

order prior to or following an administrative petition for enforcement.

See 29 C.F.R. �� 1614.408, 1614.409, and 1614.503 (g). Alternatively,

the appellant has the right to file a civil action on the underlying

complaint in accordance with the paragraph below entitled "Right to File

A Civil Action." 29 C.F.R. �� 1614.408 and 1614.409. A civil action for

enforcement or a civil action on the underlying complaint is subject to

the deadline stated in 42 U.S.C. �2000e-16(c) (Supp. V 1993). If the

appellant files a civil action, the administrative processing of the

complaint, including any petition for enforcement, will be terminated.

See 29 C.F.R. �1614.410.

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 (R0993)

This is a decision requiring the agency to continue its administrative

processing of your complaint. However, if you wish to file a civil

action, you have the right to file such action in an appropriate United

States District Court. 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:

January 19, 1999

DATE Ronnie Blumenthal, Director

Office of Federal Operations