0120090914
05-21-2009
Elaine C. Goldberg, Complainant, v. Pete Geren, Secretary, Department of the Army, Agency.
Elaine C. Goldberg,
Complainant,
v.
Pete Geren,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120090914
Agency No. ARSHAFTER08MAR01004
DECISION
Complainant filed a timely appeal with this Commission from a final
decision (FAD) by the agency dated November 24, 2008, finding that it
was in compliance with the terms of the September 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 (agreement) provided, in pertinent part, that
the agency would:
(1) File the appropriate personnel documentation to restore 19.5
hours of annual leave and provide a 16 hour time off award within sixty
(60) days of the execution of this agreement.
(2) Expunge the memorandum dated March 21,2008 from [a management
official] from [complainant's] Official Personnel File.
(3) File the appropriate procurement request to acquire a device
(estimated approximate value between $200-$300) high (tall) enough for
patients to stand on (weight bearing device).
By letter to the agency dated October 24, 2008, complainant alleged that
the agreement was null and void due to alleged misrepresentation by
the agency. Specifically, complainant alleged that agency officials
"falsified information which caused me to sign this agreement."
Complainant maintains that an agency official (RMO1) swore under oath that
a colleague (CW) of complainant's received a one day performance award,
saying that "I do not have [CW's] rating with me, but I can guarantee that
she did receive a one-day performance award as you did." Complainant
further maintains that, contrary to RMO1's claim, she subsequently
learned from CW that CW did not receive a one-day performance award.
In addition, complainant maintains that agency officials claimed during
the course of the investigation that complainant's prior performance
ratings were missing, but complainant subsequently learned that they
were in her personnel file.
In its November 24, 2008 FAD, the agency concluded that the agreement
was valid. The agency noted that the agreement contained a term stating
the following: "The Parties acknowledge that no promise, agreement, fact,
or opinion not expressed herein has been made by or to them to induce
this Agreement and that this settlement is made with full knowledge of
the facts and possibilities of the subject matters of this Agreement."
In addition, the agency obtained an undated sworn affidavit from RMO1
stating that she did not recall mentioning any time-off award that CW
may have received. See Agency Exhibit 3. The FAD further found that
the issue of complainant's performance ratings was immaterial because
the agreement makes no mention of the availability of complainant's
performance ratings. The agency concluded that complainant failed to
establish misrepresentation or breach of the agreement.
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).
Because the Commission favors the voluntary resolution of discrimination
complaints, settlement agreements are not lightly set aside. However,
the Commission will find the contract void if coercion, misrepresentation,
misinterpretation, or mistake occur during the formation of the contract,
making assent to the agreement impossible. See Shuman v. Department of
the Navy, EEOC Request No. 05900744 (July 20, 1990).
In the instant case we note that, even assuming for the sake of argument
that agency officials engaged in the misrepresentation complainant
alleges, she has not shown that any such misrepresentation is material.
Specifically, complainant has not explained how being misled about CW's
time off award, or the whereabouts of complainant's performance ratings,
led to her sign the agreement that she otherwise would not have signed.
Furthermore, as the agency noted in the FAD, complainant signed the
agreement which contains a clause stating that the parties acknowledge
that "no . . . fact . . . not expressed herein has been [told] . . .to
them to induce this Agreement." In addition, as noted in the FAD, RMO1
averred that she did not recall telling complainant about any time off
award CW may have received. Finally we find that complainant has not
otherwise shown that the agency engaged in material misrepresentation,
or coercion, or that the agency failed to comply with any term of the
agreement. Accordingly, we AFFIRM the FAD.
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
May 21, 2009
__________________
Date
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0120090914
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120090914