Fatima Vaughn, Complainant,v.William S. Cohen, Secretary, Department of Defense, (Defense Logistics Agency), Agency.

Equal Employment Opportunity CommissionAug 8, 2000
01996182 (E.E.O.C. Aug. 8, 2000)

01996182

08-08-2000

Fatima Vaughn, Complainant, v. William S. Cohen, Secretary, Department of Defense, (Defense Logistics Agency), Agency.


Fatima Vaughn v. Department of Defense

01996182

August 8, 2000

.

Fatima Vaughn,

Complainant,

v.

William S. Cohen,

Secretary,

Department of Defense,

(Defense Logistics Agency),

Agency.

Appeal No. 01996182

Agency No. 98A7038001

DECISION

Complainant filed a timely appeal with this Commission from a final

decision by the agency dated July 6, 1999, finding that it was in

compliance with the terms of the May 21, 1998 settlement agreement into

which the parties entered.<1>

Complainant entered into a settlement agreement with the agency on May

21, 1998, which provided that in exchange for complainant withdrawing a

prior EEO complaint, the agency would: from the period ending December 6,

1997 through January 17, 1998, place complainant on administrative leave

as opposed to advanced sick leave; restore thirty hours of annual leave;

change complainant's 1997 performance rating from �EFS� to �O� and give

complainant a step increase from GS-6-4 to GS-6-5 with back pay from

August 18, 1997; promote complainant to GS-7 retroactive to October

13, 1997 with back pay; pay complainant a cash amount of $13,491.00;

pay directly to complainant's attorney a sum of $1250.00 for attorney's

fees; and the agency agrees it will not retaliate against complainant

for filing the instant complaint.

After requesting and being refused a copy of an investigative file for

a prior complaint, complainant, on May 11, 1999, claimed the agency

breached the settlement agreement's �no reprisal� clause when the agency

failed to provide complainant with a copy of the investigative file.

On July 6, 1999, the agency issued a final decision finding that the

settlement agreement had not been breached.

The regulation set forth at 64 Fed. Reg. 37,644, 37,660 (1999)(to be

codified and hereinafter referred to as 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. If the complainant believes that the agency

has failed to comply with the terms of a settlement agreement, the

complainant shall notify the Director of Equal Employment Opportunity

of the alleged noncompliance with the settlement agreement within 30

days of when the complainant knew or should have known of the alleged

noncompliance. 29 C.F.R. � 1614.504 (a). The complainant may request

that the terms of the settlement agreement be specifically implemented

or request that the complaint be reinstated for further processing from

the point processing ceased. Id.

Settlement agreements are contracts between the complainant and the

agency and it is the intent of the parties as expressed in the contract,

and not some unexpressed intention, that controls the contract's

construction. Eggleston v. Department of Veterans Affairs, EEOC Request

No. 05900795 (Aug. 23, 1990). In reviewing settlement agreements to

determine if there is a breach, the Commission is often required to

ascertain the intent of the parties and will generally rely on the

plain meaning rule. Wong v. United States Postal Service, EEOC Request

No. 05931097 (Apr. 29, 1994) (citing Hyon O v. United States Postal

Service, EEOC Request No. 05910787 (Dec. 2, 1991)). This rule states that

if the writing appears to be plain and unambiguous on its face, then its

meaning must be determined from the four corners of the instrument without

any resort to extrinsic evidence of any nature. Id. (citing Montgomery

Elevator v. Building Engineering Service, 730 F.2d 377 (5th Cir. 1984)).

EEOC Regulation 29 C.F.R. � 1614.504(c) provides that subsequent acts of

discrimination, which violate a settlement agreement shall be processed as

separate complaints under the regulation set forth at 64 Fed. Reg. 37,644,

37,656 (1999)(to be codified and hereinafter referred to as 29 C.F.R. �

1614.106) rather than under this section. In this case, complainant

has only alleged a subsequent act of discrimination that violates the

instant settlement agreement. Accordingly, we find insufficient evidence

to conclude that the agency has breached the settlement agreement.

We note, that if complainant wishes to pursue this matter as a separate

complaint, she should bring this allegation to the attention of an EEO

Counselor pursuant to the regulation set forth at 64 Fed. Reg. 37,644,

37,656 (1999)(to be codified and hereinafter referred to as 29 C.F.R. �

1614.105).

The Commission finds that the agency's decision finding no breach was

proper and is AFFIRMED.

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:

August 8, 2000

____________________________

Date Carlton M. Hadden, Director

Office of Federal Operations

CERTIFICATE OF MAILING

For timeliness purposes, the Commission will presume that this decision

was received within five (5) calendar days of mailing. I certify that

the 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.