Christina J. Manuel, Complainant,v.Pete Geren, Secretary, Department of the Army, Agency.

Equal Employment Opportunity CommissionFeb 26, 2009
0120090039 (E.E.O.C. Feb. 26, 2009)

0120090039

02-26-2009

Christina J. Manuel, Complainant, v. Pete Geren, Secretary, Department of the Army, Agency.


Christina J. Manuel,

Complainant,

v.

Pete Geren,

Secretary,

Department of the Army,

Agency.

Appeal No. 0120090039

Agency No. ARPOM07AUG03891

DECISION

Complainant filed a timely appeal with this Commission from a final

decision (FAD) by the agency dated August 21, 2008, finding that it

was in compliance with the terms of the February 22, 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 the agency

would:

(1) Draft a letter of clarification and apology from

Mr. S.C. expressing his personal regret that the complainant felt

mistreated when he reassigned her from her supervisory position and duties

as a language familiarization assistance team (LFAST) program manager in

the Field Support & Special Programs of Continuing Education Division,

to a non-supervisory position in the test development, evaluation and

standardization division. This letter will clarify that the agency's

decision to reassign her was strictly a management decision for efficient

operation of the agency. (Attachment 1).

(2) Draft a letter of recommendation to address the complainant's

strength and positive attributes as a foreign language (Urdu) instructor.

This letter will be placed in the complainant's official file.

(Attachment 2).

(3) Contact the faculty personal system administrator and recommend

that the aforementioned letters be included in the complainant's packet

for the upcoming merit pay point appeal process.

In exchange, complainant agreed to withdraw discrimination complaint

ARPOM07AUG03891, and not pursue any litigation based on the facts in

the complaint. The complaint alleged discrimination based on race,

national origin, and gender.

By letter the agency received on July 21, 2008, complainant alleged

that the agency breached the settlement agreement, and requested that

it reinstate her complaint. She took issue with the wording of the

letter of clarification and apology and letter of recommendation, and

claimed the agency did not implement clause 3, above. Previously, by

letter dated June 19, 2008, complainant expressed dissatisfaction with

the settlement, stating she should have had an attorney, and was tired,

stressed, and pressured during the mediation. She also referred to oral

promises that were allegedly made.

The FAD found that the agency complied with each provision in the

settlement agreement. It referred to documentation in the record to

support this.

On appeal, complainant avers that she did not have legal representation,

did not understand the legal terms in the settlement agreement, she was

rushed and pressured during mediation, and there was no time to read

all the fine print. She avers that she was made to understand that

the two letters would be included in her merit pay package appeal.

In opposition to the appeal, the agency argues that it complied with

the settlement agreement and that complainant knowingly and voluntarily

entered therein.

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).

Applying the above standards, we find that the agency complied with the

settlement agreement. While complainant takes issue with the wording

in the letter of clarification and apology and letter of recommendation,

they were attached to the settlement agreement which complainant signed.

This shows she agreed to the wording. Further, the agency submitted

documentation that it asked the faculty personnel system administrator

to include the letters in the merit pay dispute packet, but that

the administrator declined. This complied with clause three of the

settlement agreement.

Further, complainant's argument that the settlement agreement should

be rescinded because she did not have a lawyer, the mediation was

rushed and she was pressured, she did not understand the terms of the

settlement agreement, and so forth is not supported by the record and

is unpersuasive. The settlement agreement was clearly worded and not

long, and the attached letters were short.

Accordingly, the FAD is affirmed.

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

February 26, 2009

__________________

Date

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0120090039

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

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0120090039