01a03380
08-10-2000
Dolores J. DeVillier, Complainant, v. Bruce Babbitt, Secretary, Department of the Interior, Agency.
Dolores J. DeVillier v. Department of the Interior
01A03380
August 10, 2000
.
Dolores J. DeVillier,
Complainant,
v.
Bruce Babbitt,
Secretary,
Department of the Interior,
Agency.
Appeal No. 01A03380
Agency Nos. WBR-97-012
FWS-96-025
DECISION
Complainant filed a timely appeal with this Commission from a final
decision (FAD) by the agency dated March 24, 2000, finding that it
was in compliance with the terms of the December 22, 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 agency agrees to pay the complainant a lump sum payment of $750
settlement of all claims for back pay, benefits, attorney's fees and any
other damages. The agency agrees to issue the payment to the complainant
within fourteen (14) days of the effective date of this agreement.
(9) The agency agrees to designate within fourteen (14) days of the
effective date of this agreement an individual with the agency who will
be responsible for implementation of this agreement and with whom the
complainant may consult about training opportunities.
By letter to the agency dated January 10, 2000, complainant alleged that
the agency was in breach of the settlement agreement, and requested that
the agency specifically implement the terms of provisions (2) and (9).
In its March 24, 2000 FAD, the agency concluded that it complied
with provisions (2) and (9). Particularly, the agency stated that it
transferred $750 into complainant's account on January 6, 2000, and
received confirmation of the money transfer on the same day. As to
provision (9), the agency stated that on December 22, 1999, the agency
representative informed complainant that a named Personnel Official was
the individual she should contact regarding training opportunities.
On February 14, 2000, the agency representative informed complainant
that she should contact her immediate supervisor instead of the Personnel
Official regarding the terms of the settlement agreement.
Volume 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)) 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 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).
According to the Commission's case precedent, when an agency has
committed, in good faith, a technical breach of a provision of the
agreement which did not undermine its purpose or effect, the agency
has substantially complied with the settlement agreement. See Baron
v. Department of the Treasury, EEOC Request No. 05930277 (September 30,
1993) (finding a two-week delay in transfer of official and letter of
regret rather than letter of apology to be substantial compliance); see
also Ramirez v. United States Postal Service, EEOC Request No. 05930283
(August 12, 1993) (finding substantial compliance notwithstanding dispute
over manner in which overtime opportunities required under agreement
were granted).
In the instant case, although the record reflects that the agency did
not comply with the deadline in the agreement when it issued complainant
the lump sum payment one day after the fourteen (14) day limit expired,
the Commission finds that the agency has substantially complied with
the terms of the agreement. As to provision (9), on December 22, 1999,
the agency informed complainant of the designated official whom she may
contact regarding training. Although the designated official changed on
February 14, 2000, the agency did not breach provision (9). Thus, we
conclude that the agency has complied with the terms of the agreement.
The Commission finds that it would serve no useful purpose to remand
this case for reinstatement of the underlying complaint. Accordingly,
the Commission AFFIRMS the agency's decision.
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
August 10, 2000
__________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
__________________
Date
______________________________
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.