0120090391
02-12-2009
Cindy D. Blizzard, Complainant, v. Pete Geren, Secretary, Department of the Army, Agency.
Cindy D. Blizzard,
Complainant,
v.
Pete Geren,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120090391
Agency No. ARREDSTON06JAN00223
DECISION
Complainant filed a timely appeal with this Commission from a final
decision (FAD) by the agency dated September 29, 2008, finding that
it was in compliance with the terms of the May 15, 2007 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:
(c) The AMCOM Acquisition Center will offer Complainant a promotion
to GS-1102-12 at the time she has fulfilled the eligibility requirements
of GS-1102-12, 52 weeks from April 1, 2007.
The agreement also had a confidentiality provision. By letter to the
agency dated September 11, 2008, complainant alleged that the agency
was in breach of the settlement agreement, and requested that the agency
specifically implement its terms. Specifically, complainant alleged that
the agency failed to promote her to GS-11-2-12 at her current position
with the AMCOM Acquisition Center. Further, complainant stated that
a co-worker overheard a supervisor discussing complainant's settlement
agreement on the telephone.
In its September 29, 2008 FAD, the agency concluded it was not in breach
of the agreement. The agency noted it had offered complainant 2 promotions
within the AMCOM Acquisitions Center, and that she had rejected both
because they were not within the Operations and Services Directorate.
Further, the agency noted that the breach of confidentiality was based on
hearsay and the supervisor denied discussing the settlement agreement.
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 finds that the agency is in compliance
with the settlement agreement. The agreement required the agency to
offer complainant a promotion within the AMCOM Acquisition Center,
not within a specific directorate. If complainant expected to remain
within her position or directorate she should have so stated in the
agreement. The agency offered complainant two positions to choose from and
she rejected both. It had no duty to keep offering complainant positions.
The Commission also agrees that there is insufficient evidence that
the confidentiality portion of the agreement was breached. As such,
the agency is in compliance with the agreement.
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 12, 2009
__________________
Date
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0120090391
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120090391