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.