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