01A23637_r
03-19-2003
Eileen Jungbauer, Complainant, v. Norman Y. Mineta, Secretary, Department of Transportation, Agency.
Eileen Jungbauer v. Department of Transportation
01A23637
March 19, 2003
.
Eileen Jungbauer,
Complainant,
v.
Norman Y. Mineta,
Secretary,
Department of Transportation,
Agency.
Appeal No. 01A23637
Agency No. 4-92-4048B
DECISION
Complainant filed a timely appeal with this Commission from a final
decision by the agency dated May 23, 2002, finding that it was in
compliance with the terms of the November 20, 1992 settlement agreement
into which the parties entered.
The settlement agreement provided that complainant would receive,
among other relief, a specific work assignment and salary; training;
restoration of described leave; and also provided in pertinent part, that:
The Agency will remove any references to my complaint of discrimination
from my official personnel file and performance records.
By letter to the agency dated April 17, 2002, complainant alleged that
the agency was in breach of provision 10 of the settlement agreement,
and requested that the agency reinstate her complaint. Specifically,
complainant alleged that the agency failed to remove from her official
agency medical record several documents that referenced her prior EEO
activity.
In its May 23, 2002 decision, the agency concluded that the settlement
agreement did not require the agency to purge complainant's official
medical record of documents referring to her discrimination complaint,
but that nevertheless, the agency has now removed the documents in
question from her official medical record as well.
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).
In the instant case, we find that complainant failed to establish that
any breach of the 1992 settlement agreement has occurred. The plain
language of the settlement agreement does not refer to complainant's
official agency medical records, and therefore, the agency was under
no duty to purge complainant's medical records of the EEO complaint
references. Therefore, we find that the agency did not breach the
settlement agreement. Complainant has failed to show that the agency
has acted in bad faith in implementing the agreement. Furthermore, we
note that the agency asserts that it has taken the necessary steps to
remove from complainant's medical records those documents that refer to
complainant's discrimination complaint. Complainant has not challenged
the agency's assertion on appeal.
Accordingly, we AFFIRM the agency's decision finding no breach of the
settlement agreement.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 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 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 (S0900)
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
March 19, 2003
__________________
Date