Delores Clark, Complainant,v.Timothy F. Geithner, Secretary, Department of the Treasury, Agency.

Equal Employment Opportunity CommissionSep 15, 2009
0120092815 (E.E.O.C. Sep. 15, 2009)

0120092815

09-15-2009

Delores Clark, Complainant, v. Timothy F. Geithner, Secretary, Department of the Treasury, Agency.


Delores Clark,

Complainant,

v.

Timothy F. Geithner,

Secretary,

Department of the Treasury,

Agency.

Appeal No. 0120092815

Agency No. IRS080201

DECISION

Complainant filed a timely appeal with this Commission from a

determination by the agency dated May 20, 2009, finding that it was in

compliance with the terms of the December 24, 2008 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.

The settlement agreement provided, in pertinent part, that:

(1) Within 30 days of the signing of this agreement Manager of

CARE Field Assistance, Area 1-Andover-MA will meet with the aggrieved to

discuss and prepare a career learning plan that will provide the aggrieved

with developmental assignments. This meeting is scheduled for 1/14/09;

(2) Within 30 days of the signing of this agreement Manager of CARE

Field Assistance, Area 1-Andover-MA will have the aggrieved provide OJI

[on-the-job instruction] for an employee in the Mays Landing, New Jersey

POD to commence on 1/21/09 and end on the same day; and

(3) Within 30 days of the signing of this agreement Manager of CARE

Field Assistance, Area 1-Andover-MA will have the aggrieved perform E

File program reviews for each employee in the Trenton, Mays Landing and

Cherry Hill New Jersey PODs. Three E File program reviews will be done

on each employee to be completed by 2/28/09.

By letter to the agency dated March 9, 2009, complainant alleged that

the agency breached the settlement agreement. On term 1, complainant

wrote that the meeting did not occur until January 23, 2009. On term 2,

complainant wrote that when she traveled to the employee to provide the

OJI, the proper software was not installed on her desktop computer, and

she was not able to return to complete the OJI. On term 3, complainant

wrote the relevant cases for Cherry Hill and Mays Landing were handpicked

by a manager and sent to her via mail, making it impossible to properly

complete the reviews, and she was not allowed to complete any reviews

for Trenton employees.

The agency countered that it complied with the settlement agreement.

On claim 1, the agency argued that the meeting occurred on January 23,

2009, within 30 calendar days of the signing of the settlement agreement,

as promised. On claim 2, the agency relied on a January 24, 2009, email

by complainant to show she conducted OJI in satisfaction that term.

In the email, complainant wrote that the employee's desktop did not

contain certain software, but "she went step by step with the EKG with

DOT and set the tax form defaults," set up new passwords, reviewed 2007

files, and "showed DOT where the new reject log is located...and use

it for 2008." On term 3, the agency submitted an email by a manager

stating that complainant was assigned Trenton E File review cases on

February 11, 2009, did not do them, but was expected to complete them

by May 27, 2009. The agency notes that it could not assign any E File

reviews before January 30, 2009, because the Internal Revenue Service only

began E File returns on January 30, 2009. The record contains copies

of complainant's February 24, 2009, E File reviews for Mays Landing and

Cherry Hill E Files. Complainant found limited deficiencies, but wrote

there were various things she was unable to determine.

On appeal, complainant writes without elaboration that the agency breached

the settlement agreement. She argues that the agency has resumed treating

her in a hostile and negative manner, and that she has filed a claim.

In response to complainant's appeal, the agency reiterates argument made

below that it did not breach the settlement agreement. It writes that

complainant filed a hostile work environment claim in February 2009,

and it is pending before the agency.

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).

Regarding claim 1, as argued by the agency, the subject meeting occurred

within 30 calendar days of the signing of the settlement agreement,

as promised. Regarding claim 2, complainant contends that she was

unable to perform the OJI instruction, as contemplated, because the

employee did not have certain software installed on her computer desktop.

Nevertheless, complainant still performed OJI instruction, as promised,

which was only to last one day. Regarding claim 3, the record reflects

that complainant was provided the opportunity to conduct E Program Reviews

for all three locations as promised. Complainant has not established

that she was not given a real opportunity to conduct reviews.

The FAD is affirmed.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M1208)

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 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 (S0408)

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 (Z1008)

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

September 15, 2009

__________________

Date

2

0120092815

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

4

0120092815