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