Christina C. McGuire, Complainant,v.Pete Geren, Secretary, Department of the Army, Agency.

Equal Employment Opportunity CommissionJan 16, 2009
0120083725 (E.E.O.C. Jan. 16, 2009)

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