0120091199
05-21-2009
Elvenia A. Latson, Complainant, v. Eric H. Holder, Jr., Attorney General, Department of Justice, Agency.
Elvenia A. Latson,
Complainant,
v.
Eric H. Holder, Jr.,
Attorney General,
Department of Justice,
Agency.
Appeal No. 0120091199
Agency No. ATF200700231
DECISION
Complainant filed a timely appeal with this Commission alleging that
the agency had not complied with a settlement agreement. The agency
issued its final decision (FAD) on March 27, 2009, finding that it
was in compliance with the terms of the September 18, 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) The agency agrees to promote Complainant to a GS-13 1801
Industry Operations Investigator (IOI) position effective September 18,
2007. However, complainant is not entitled to any back pay, interest
or benefits. Complainant will begin receiving GS-13 pay with the pay
period beginning on September 28, 2008, The promotion will be documented
manually.
(2) The agency shall remove the Counseling Memorandum dated March
23, 2007 and the Letter of Clarification dated on or about June 24, 2008
that were given to complainant from her Official Personnel Folder (OPF).
(3) The agency agrees to pay complainant the lump sum of $5,000 to
satisfy all claims.
By letter to the agency dated October 20, 2008, complainant alleged that
the agency was in breach of the settlement agreement. Specifically,
complainant alleged that the agency failed to document her promotion
and she was denied access to her personnel file. Complainant sought
reinstatement of her complaint.
When the agency did not issue a decision on the non-compliance
allegations, complainant filed the instant appeal. However, on March 27,
2009 the agency issued its FAD on the matter. Therein the agency concluded
it was not in breach of the agreement. The agency noted it has processed
the SF-50 reflecting complainant's promotion to GS-1801-13 effective
September 18, 2007. Another SF-50 was processed reflecting complainant's
GS-13 pay would start September 28, 2008. The agency stated the EEO
office checked complainant's official personnel folder and it did not
contain the counseling memorandum or clarification letters referred to
in provision (2) of the settlement agreement. A copy of complainant's
official personnel file was mailed to her and the agency included a copy
of the envelope. Finally the agency stated it had paid complainant the
$5,000.1
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, the Commission finds that the agency has complied
with the settlement agreement. The agency has submitted documents which
show it has complied with the agreement. As such, the Commission finds
no breach.
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
1 If the complaint were to be reinstated, complainant would have to
return all money and benefits received.
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0120091199
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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