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
2
0120090039
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
4
0120090039