01a53681
07-28-2005
Claudine Johnson, Complainant, v. Alberto Gonzales, Attorney General, Department of Justice, Agency.
Claudine Johnson v. Department of Justice
01A53681
July 28, 2005
.
Claudine Johnson,
Complainant,
v.
Alberto Gonzales,
Attorney General,
Department of Justice,
Agency.
Appeal No. 01A53681
Agency No. A-04-19-1027
DECISION
Complainant filed a timely appeal with this Commission from an agency
decision, dated April 4, 2005, finding that it was in compliance with
the terms of a March 16, 2004 settlement agreement. See 29 C.F.R. �
1614.402; 29 C.F.R. � 1614.504(b); and 29 C.F.R. � 1614.405.
The March 16, 2004 settlement agreement provided, in pertinent part, that:
(2) Complainant . . . agrees to withdraw her pending request for
Reasonable Accommodation dated February 10, 2004.
. . .
(4) In consideration of Complainant's promises to withdraw her EEO
complaint and Reasonable Accommodation Request, the Agency agrees to
transfer Complainant to a new AUSA [Assistant United States Attorney]
or more than one AUSA (any AUSA other than the currently assigned AUSA)
in conjunction with the upcoming office move.
(5) The Agency further agrees to transfer Complainant to a new direct
supervisor (and supervisor other than the currently assigned supervisor).
In a document dated November 2, 2004, complainant claimed breach of
provision (5), stating that �no one ever told me who the new direct
supervisor was.�
Complainant also claimed that relinquishing her request for reasonable
accommodation as part of provision (2), her work assignments
began requiring more standing and walking. Complainant claimed that
�[m]anagement had promised, during the settlement, that I would not have
to do much standing and walking.�
In its April 4, 2005 decision, the agency found no breach. Regarding
complainant's assertion relating to additional standing and walking in
violation of her doctor's orders, the agency determined that restrictions
relating to such activities was not contemplated in the settlement
agreement. The agency noted that provision (8) provides that the instant
agreement constituted a complete understanding between the parties and
no other promises would be binding unless signed by the parties.
Regarding provision (5), the agency determined that various e-mails
demonstrated that Senior Legal Assistant �LI� was named as complainant's
supervisor.
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, complainant contends that the agency breached
provision (5) when she was not told the identity of her new direct
supervisor. As noted above, provision (5) requires that complainant be
transferred to a new supervisor, anyone other than her current supervisor.
The record contains e-mails to complainant indicating that her work was to
be reviewed by Senior Legal Assistant �LI�. The record does not indicate
that complainant was still under the previous supervisor's supervision.
Therefore, we do not find that provision (5) has been breached.
Finally, the Commission notes that complainant asserts that agency
management breached the instant settlement agreement when it required more
walking and standing, in violation of her doctor's orders. The Commission
acknowledges that complainant withdrew a prior request for reasonable
accommodation, as reflected in provision (2). The Commission has held
that complainants may waive the right to pursue EEO claims arising on
or before the date of a settlement agreement. Mole v. Department of
the Treasury, EEOC Request No. 05940741 (June 4, 1992). However, an
agreement which waives prospective EEO rights is invalid as violative
of public policy. Bell v. Department of Defense, EEOC Request No.
05940741 (January 6, 1995). If complainant determines that she has
been denied reasonable accommodation upon her assignment to a new AUSA,
she should pursue this matter as a new EEO complaint.
The agency's decision finding no breach was proper and is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 19848,
Washington, D.C. 20036. 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 (S0900)
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 (Z1199)
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 that the Court appoint
an attorney to represent you and that the Court 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 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
July 28, 2005
__________________
Date