0120121629
07-19-2012
Danine Giorgianni, Complainant, v. Timothy F. Geithner, Secretary, Department of the Treasury (U.S. Mint), Agency.
Danine Giorgianni,
Complainant,
v.
Timothy F. Geithner,
Secretary,
Department of the Treasury
(U.S. Mint),
Agency.
Appeal No. 0120121629
Agency No. MINT-01-0653-F
DECISION
Complainant filed a timely appeal with this Commission from a final decision (FAD) by the Agency dated January 19, 2012, finding that it was in compliance with the terms of the 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as an Information Technology Specialist in the Infrastructure & Operations Support Division assigned to the Agency's facility in West Point, New York. Believing that the Agency subjected her to unlawful discrimination, Complainant contacted an Agency EEO Counselor to initiate the EEO complaint process. On May 11, 2004, Complainant and the Agency entered into a settlement agreement to resolve the matter. The Settlement Agreement provided, in pertinent part, that:
The Agency will [p]ermit Complainant to telecommute two days each week in accordance with Agency policy. Complainant recognizes that occasionally she may be required to telecommute less than two days in a week provided there are legitimate business reasons for such a requirement.
By e-mail to the Agency dated August 19, 2011, Complainant alleged that the Agency was in breach of the Settlement Agreement, and requested that the Agency specifically implement its terms. Specifically, Complainant indicated that on August 10, 2011, the Division Chief sent an e-mail dated August 10, 2011, stating that all employees within the Division would only be eligible for employees to telework on an episodic/situational basis. The Division Chief noted that this was a change to the Division policy. Complainant contacted the Division Chief asserting that the change in policy was in violation of the Settlement Agreement. The Division Chief indicated to Complainant that she could still maintain her five floating telework days a year as provided in another Settlement Agreement. However, she could no longer telework two days per week any longer.
In its January 19, 2012 FAD, the Agency concluded that the Agency did not breach the Settlement Agreement. The Agency noted that the Settlement Agreement provided that Complainant's telework was provided in "accordance with Agency policy." The Agency changed its telework policy and for business reasons believed that the Agency could no longer provide employees within the Division with telework. Therefore, the Agency concluded that there was no breach of the Settlement Agreement.
This appeal followed.
ANALYSIS
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. Dep't of Def., 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. Dep't 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. U.S. Postal Serv., 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).
The Commission has held that where an individual bargains for a position without any specific terms as to the length of service, it would be improper to interpret the reasonable intentions of the parties to include employment in that exact position ad infinitum. See Holley v. Dep't. of Veterans Affairs, EEOC Request No. 05950842 (November 13, 1997); Papac v. Dep't. of Veterans Affairs, EEOC Request No. 05910808 (December 12, 1991); see also Parker v. Dep't. of Defense, EEOC Request No. 05910576 (August 30, 1991). Similarly, the Commission finds that it would be improper to interpret the terms of the instant Settlement Agreement that Complainant would be provided with telework for forever. Here, the record indicates that Complainant was provided with telework two days a week from May 2004 through August 2011. We find that this period of over seven years was sufficient time to establish good faith compliance by the Agency with the terms of the Settlement Agreement. Therefore, we find that the Agency did not breach the Settlement Agreement.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's determination finding no breach.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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 (S0610)
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 (Z0610)
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
July 19, 2012
__________________
Date
2
0120121629
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120121629