Defloris Ann Ford Bishop, Complainant,v.Agency.

Equal Employment Opportunity CommissionAug 10, 2000
01a02545 (E.E.O.C. Aug. 10, 2000)

01a02545

08-10-2000

Defloris Ann Ford Bishop, Complainant, v. Agency.


Defloris F. Bishop v. Department of the Army

01A02545

August 10, 2000

.

Defloris Ann Ford Bishop,

Complainant,

v.

Agency.

Appeal No. 01A02545

Agency Nos. AFBG9902J0040, BSFO9907J0130

DECISION

Complainant filed a timely appeal with this Commission from a final

decision by the agency dated January 7, 2000, finding that it was in

compliance with the terms of the October 25, 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).

The settlement agreement provided, in pertinent part, that:

2. The Army, Pine Bluff Arsenal (PBA) agrees:

(a) To relocate Ms. Bishop to Building 32-090. Employee will remain an

Inventory Management Specialist, GS-2010-09, Directorate of Logistics,

Property Management Division, Stock Record Team.

3. The Complainant agrees:

To return to work on Monday, 1 November 1999.

By letter to the agency dated December 6, 1999, 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, by letter dated November 4, 1999, the agency had informed

her that she would be returned to her former position as an Inventory

Management Specialist because she breached the settlement agreement when

she did not report to work on the November 1, 1999 date specified in

the agreement. Complainant asserted that she had provided the agency

a doctor's excuse that was hand delivered on October 18, 1999, stating

that she would continue to be under the care of her doctor.

In its January 7, 2000 decision, the agency concluded that, as stated

in the November 4, 1999 letter to complainant's attorney, complainant

had breached the settlement agreement and as a result would be placed

back into her former position. Concluding that management had in

effect vacated the agreement, the agency therefore decided to reinstate

complainant's complaints at the point where the EEO complaint process

ceased.

On appeal, complainant asserts that �[i]f I could have been present on 1

November 1999 ... I would have.� Complainant also asserts that she �made

no claims of being ready to return to work and after all that decision

is not up to me, it is a doctor's decision based on my progress.�

We note from the record that the �doctor's excuse� delivered on October

18, 1999, to complainant's supervisor and titled �Return to Work/School,�

states simply that complainant �Will return to our office for f/u (follow

up) on Dec. 9, 1999.� The record also indicates that on November 8,

1999, after complainant failed to report for work, complainant's husband

delivered an application for leave slip for his wife covering the period

from October 14, 1999, through December 9, 1999. Finally, the record

shows that complainant contacted her supervisor on November 30, 1999,

and, after a meeting with the commander, returned to work on December

13, 1999.

The regulations set forth at 64 Fed. Reg. 37,644, 37,656 (1999)(to be

codified and hereinafter referred to as EEOC Regulation 29 C.F.R. �

1614.504(a)) provide 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).

In the instant case, we find that the agency did not breach the terms

of the settlement agreement

when it �vacated� the agreement and returned complainant to her former

position. Although complainant claims that she had a �doctor's excuse�

and that she was incapable of being at work on November 1, 1999, as called

for in the agreement, she has not provided sufficient evidence to justify

her position. The �doctor's excuse� given to complainant supervisor

on October 18, 1999, stated only that complainant would have a follow

up visit on December 9, 1999, and did not give any indication of her

ability or inability to work. Standing alone, the doctor's note relied

on by complainant therefore fails to excuse her breach of the settlement

agreement. Moreover, even if the doctor's note, dated October 14, 1999,

indicated that complainant could not work at that time, the settlement

agreement was signed by complainant on October 25, 1999. Consequently,

any indication the agency might have had from the doctor's note that

complainant was unable to return to work was superseded by her signing of

the settlement agreement. Furthermore, as complainant thereafter did not

provide the agency with any indication that she would not return to work

as agreed until her application for leave was delivered on November 8,

1999, the agency justifiably vacated the agreement. Therefore, the

agency's action to return complainant to her former position did not

violate the settlement agreement.

Accordingly, the agency's decision finding that it properly vacated the

settlement agreement is AFFIRMED.

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:

August 10, 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.