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.