0120083725
01-16-2009
Christina C. McGuire, Complainant, v. Pete Geren, Secretary, Department of the Army, Agency.
Christina C. McGuire,
Complainant,
v.
Pete Geren,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120083725
Agency No. ARMIAMI08FEB00555
DECISION
Complainant filed a timely appeal with this Commission from a final
decision (FAD) by the agency dated July 25, 2008, finding that it was
in compliance with the terms of the May 29, 2008 settlement agreement
into which the parties entered. See 29 C.F.R. � 1614.402; 29 C.F.R. �
1614.504(b); and 29 C.F.R. � 1614.405.
The settlement agreement provided, in pertinent part, that:
(4a) Pay Complainant a $20,000 lump sum payment. Payment request
will be submitted for processing within 45 days from the signing of
this agreement. The taxable nature of this payment will be determined
by the payment office and is not being determined by this agreement.
The agency shall not be held liable for any taxes withheld from this
payment. Payment will be mailed to [complainant's name and an APO address
given] It is understood by the parties that all disbursements will be
made by the Defense Finance and Accounting Service (DFAS), that the Army
has no control over DFAS, and the Army cannot be held responsible for
any delays that may occur as a result of inaction by DFAS.
(4b) Within five (5) business days of the signing of this agreement,
the agency shall submit a request for personnel action to the Army
Benefits Center, Fort Riley, Kansas, to effect complainant's retirement
effective 30 June 2008. However, the Army makes no comment on the
complainant's retirement eligibility insofar as the Office of Personnel
Management has sole authority and responsibility for adjudicating claims.
Moreover, the Army is incapable of ascertaining the amount of any annuity
or reduction thereto, as this determination is solely within the province
or reduction thereto, as this determination is solely within the province
of the Office of Personnel Management.
(5c) Complainant acknowledges that upon return from annual leave
on 11 June 2008, she will complete the Agency out-processing/clearance
procedures within five (5) business days and thereafter she will be placed
in an administrative leave status until 30 June 2008. The clearing
process includes completing all necessary forms and the return of all
Army property, badges, ID Cards, keys, government credit cards, cellular
phones,
By letters to the agency dated June 27, 2008, July 3, 2008, and August 8,
2008, complainant alleged that the agency was in breach of the settlement
agreement, and sought a modification of its terms. Of note is that
complainant asserted that she was coerced into signing the agreement,
sought to modify the $20,000 payment which was to be sent to her,
demanded her Freedom of Information Act (FOIA) rights, and the right to
pursue her rights in an administrative or judicial forum. In addition,
complainant apparently thought she could clean out her desk and visit
friends when she returned to the office in June and instead was strictly
out-processed. Complainant also asserted that the agency sent her money
to the wrong address.
The agency determined it was not in breach of the agreement. The agency
indicated that it paid complainant the $20,000,1 promptly submitted the
notification of personnel action to effectuate her retirement, and that
complainant was out-processed as called for in the agreement. The agency
noted that the terms required only that complainant be out-processed
and if she had expected more it should have been added to the agreement.
The agency found there was no evidence that complainant was subject to
coercion in signing the settlement agreement. Complainant did not submit
any statements from any witnesses and the agency noted that she provided
no medical documentation to substantiate her claim that she could not
read and comprehend the settlement agreement when she signed it.
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 O 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 instant case, the Commission agrees with the agency that
complainant has provided insufficient evidence that she was coerced into
signing the agreement. Further, though her expectations of out-processing
may have been different, she was out-processed and the agency completed
all the necessary paperwork as required by the settlement agreement.
Finally, as to the payment of the $20,000 to her bank account, the
Commission finds that while the agency should have mailed the check to
complainant, it has substantially complied and complainant has received
the money, albeit not in the manner expected.
Accordingly, the Commission finds that the agency has complied with the
settlement agreement and there is no breach.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 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 77960,
Washington, DC 20013. 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 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 (S0408)
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 (Z1008)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
January 16, 2009
__________________
Date
1 The agency did admit that, in an effort to expedite the payment, it
inadvertently deposited the amount directly into her bank account on
file.
??
??
??
??
2
0120083725
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
4
0120083725