01A41893_r
07-26-2004
Gloria G. Jalali, Complainant. v. Dr. James G. Roche, Secretary, Department of the Air Force, Agency.
Gloria G. Jalali v. Department of the Air Force
01A41893
July 26, 2004
.
Gloria G. Jalali,
Complainant.
v.
Dr. James G. Roche,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 01A41893
Agency No. RF0D03032L04
DECISION
Complainant appeals to the Commission from the agency's February 9, 2004
decision finding no breach of the settlement agreement. On October 28,
2003, the parties resolved complainant's complaints by entering into a
settlement agreement, which provided, in pertinent part, that complainant
would receive the following:
The Agency will expunge and hold in abeyance until her December 2003
permanent change of station (PCS) the following documents from the
Complainant's supervisor's personnel record (971 file) and/or official
personnel file (OPF):
AF Form 860B, Civilian Progress Review Worksheet signed 1 Nov 02;
AF Form 860B, Civilian Progress Review Worksheet signed 20 Oct 03;
Letter of Counseling dated 26 Aug 03, Subject: Failure to Accomplish
Assigned Tasks; and
Letter of Reprimand, which will be administered to the Complainant
for continually failing to accomplish assigned tasks, specifically
relating to the Native American Heritage Committee activities.
(b) The agency agrees not to provide any information and or comments
to the gaining supervisor. If input is solicited, the only information
that can be provided is the dates she worked for the Agency . . .
By letter to the agency dated November 27, 2003, complainant alleged that
the agency was in breach of the settlement agreement. Specifically,
complainant alleged that the agency breached the settlement agreement
when on November 6, 2003, �[Ms. X] brought up an issue� relating to
complainant's failure to perform assigned duties on November 5, 2003.
Complainant states that at the end of this meeting, �[Ms. X] told each of
the MEO advisors to write memos on what had occurred.� Complainant argues
that these events were �deliberate efforts to continue the retaliation�
and disregard the settlement 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).
We find that complainant has not shown breach of the settlement agreement.
The settlement agreement contains no language precluding the agency from
discussing complainant's failure to perform assigned duties subsequent
to the settlement agreement. Pursuant to 29 C.F.R. � 1614.504(c),
subsequent acts of discrimination shall be processed as separate
complaints. If complainant believes the actions on November 6, 2003
to be a subsequent act of discrimination, complainant may contact an
EEO Counselor pursuant to 29 C.F.R. � 1614.105 to file a new complaint.
The Commission does not address in this decision whether such actions
complained of by complainant would state a claim of discrimination.
The agency's decision finding no breach of the settlement agreement
is AFFIRMED.
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
July 26, 2004
__________________
Date