01993392
05-06-2000
Constance T. Reeves, Complainant, v. Richard J. Danzig, Secretary, Department of the Navy, Agency.
Constance T. Reeves, )
Complainant, )
)
v. ) Appeal No. 01993392
) Agency No. 9862604003
Richard J. Danzig, )
Secretary, )
Department of the Navy, )
Agency. )
____________________________________)
DECISION
Complainant filed a timely appeal with this Commission from a final
decision (FAD) by the agency dated February 17, 1999, finding that it
was in compliance with the terms of the January 15, 1999 settlement
agreement into which the parties entered.<1> See 64 Fed. Reg. 37,644,
37,659, 37,660 (1999)(to be codified and hereinafter referred to
as EEOC Regulation 29 C.F.R. � 1614.402); 29 C.F.R. � 1614.504(b);
and 64 Fed. Reg. 37,644, 37,659 (1999)(to be codified at 29 C.F.R. �
1614.405).
On January 15, 1999 the parties executed a settlement agreement which
provided, in pertinent part, that:
(f ) [complainant] will be allowed to discreetly call home at 7 a.m. when
she works the 6 a.m. shift.
By letter to the agency dated February 1, 1999, complainant alleged that
the agency was in breach of the settlement agreement, and requested that
the agency reinstate her complaint. Specifically, complainant alleged
that the agency failed to allow her to call home when she worked the 6
a.m. shift. According to complainant, on January 21, 1999, a supervisor
verbally admonished her for calling home.
In its February 17, 1999 FAD, the agency noted that complainant's
only allegation of breach related to paragraph �f � of the agreement.
The agency does not dispute that complainant's supervisor verbally
admonished her for using the telephone and that the admonishment
constituted a violation of the settlement agreement. However, the FAD
found that complainant's supervisor had not been informed of the specific
provisions of the settlement agreement prior to the time of the violation.
After the incident, agency officials took immediate corrective action
by informing complainant's supervisor of the details of the settlement
agreement. The FAD concluded that despite the one allegation made by the
complainant, the spirit and intent of the agreement had been carried out.
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 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).
Pursuant to 29 C.F.R. �1614.504(b), when breach of a settlement
agreement has been alleged, an agency has 35 days from the receipt
of an complainant's allegation of breach to resolve the matter. The
Commission interprets that provision to mean that an agency has 35 days
within which to cure any breach that has occurred. See Covington v. USPS,
EEOC Appeal No. 01912311 (September 30, 1991).
Even if the breach were established, the Commission has previously
found that substantial compliance with the terms of a settlement
agreement in cases where agencies have committed, in good faith,
a breach of a provision of the agreement which did not undermine its
purpose or effect. See e.g., Baron v. Dept. of the Treasury, EEOC Request
No. 05930277 (September 30, 1993) (Two week delay in transfer of official
and letter of regret rather than letter of apology found to be substantial
compliance); Ramirez v. U.S. Postal Service, EEOC Request No. 05930283
(August 12, 1993) (Substantial compliance found notwithstanding dispute
over manner in which overtime opportunities required under agreement
were granted).
In the instant case, we note that the only allegation of breach relates
to paragraph �f� (above). We also find that issue �f� is part of a
more comprehensive agreement between the agency and the complainant.
We find that the agency cured any breach which may have occurred.
We note that the settlement agreement was entered into on January
15, 1999 and that the alleged breach occurred on January 21, 1999,
before the details of the agreement reached complainant's supervisor.
The record establishes that the supervisor responsible for the alleged
breach was immediately corrected and a copy of all of the provisions
of the agreement was transmitted to complainant's direct supervisors.
Regardless of whether any breach occurred, we find that the agency
substantially complied with the terms of the settlement agreement.
Accordingly, the agency's final decision dismissing complainant's
complaint is AFFIRMED for the reasons set forth herein.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)
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:
May 6,2000 ____________________________
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
1On November 9, 1999, revised
regulations governing the EEOC's federal sector complaint process
went into effect. These regulations apply to all federal sector
EEO complaints pending at any stage in the administrative process.
Consequently, the Commission will apply the revised regulations found
at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.