01a00027
07-20-2000
Jacqueline A. Smith, Complainant, v. Richard J. Danzig, Secretary, Department of the Navy, Agency.
Jacqueline A. Smith v. Department of the Navy
01A00027
July 20, 2000
.
Jacqueline A. Smith,
Complainant,
v.
Richard J. Danzig,
Secretary,
Department of the Navy,
Agency.
Appeal No. 01A00027
Agency No. 98-67399-001
DECISION
Complainant filed a timely appeal with this Commission concerning
the agency's alleged non-compliance with the terms of the October 20,
1998 settlement agreement into which the parties entered.<1> See 64
Fed. Reg. 37,644, 37,659, 37,660 (1999)(to be codified and hereinafter
referred to as EEOC Regulation 29 C.F.R. � 1614.402); 29 C.F.R. �
1614.504(b); and 64 Fed. Reg. 37,644, 37,659 (1999)(to be codified at
29 C.F.R. � 1614.405).
The settlement agreement provided, in pertinent part, that:
(1) The agency agrees that a desk audit of the Complainant's position will
be conducted and results provided within 60 working days of signature of
the agreement. This audit will be conducted by complainant appealing to
either the Field Services Advisory or the Office of Personnel Management.
The Human Resources Office will assist complainant in filing this
appeal.
(3) Complainant will be treated in a fair and equitable manner.
By letter to the Commission, dated November 22, 1999, with a copy
to the agency, complainant claimed that the agency breached the
settlement agreement, and requested that the agency implement its terms.
Specifically, complainant alleged that the agency failed to conduct
the desk audit. Complainant noted that she filed the desk audit appeal
with the agency's Field Services Advisory department; that the desk
audit appeal was returned to her; and that she was told that she had to
submit the desk audit appeal through the Human Resource Office. She also
contends that she contacted a certain agency official who failed to
provided her with the necessary audited position description for the desk
audit. Further, complainant alleged that she was not treated in a fair
and equitable manner because of not receiving the position description
for the audit, and because her performance standards are incorrect.
She also contends that the agency failed to provide her with a letter
of accommodation regarding her fear of animals.
In response, the agency argues that sending the desk audit appeal to
the wrong office was simply a mistake. The agency further argues that
it continued to assist complainant in processing the desk audit appeal,
but that she refused to comply with the procedure or to prepare necessary
documents, thereby causing delays in the process. The agency further
argues that this claim is now moot because the audit was conducted on
November 19, 1999, and resulted in a downgrade, precluding an award of
back pay. Further, the agency denies treating complainant unfairly.
The agency notes that complainant received an award and a temporary
promotion since the execution of the settlement agreement. Regarding the
accommodation letter, the agency argues that this matter does not fall
under a settlement agreement provision.
Volume 64 Fed. Reg. 37,644, 37,656 (1999)(to be codified and hereinafter
referred to as 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 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).
The Commission notes that while there existed a delay in obtaining
the desk audit, a desk audit was nevertheless completed, although
past the 60-day time frame imposed by the settlement agreement.
Previous Commission decisions have indicated that failure to satisfy
a time frame specified in the agreement does not prevent a finding
of substantial compliance, especially when all required actions were
subsequently completed. See Lazarte v. Department of the Interior, EEOC
Appeal No. 01954274 (April 25, 1996); Owens v. Department of the Army,
EEOC Appeal No. 01955828 (July 1, 1996). Therefore, we determine that
the agency complied with this provision of the settlement agreement.
Regarding the claim of breach of the provision of the agreement dictating
an affirmative agency obligation to treat complainant �in a fair and
equitable manner,� the Commission notes that this provision does not
provide complainant with anything beyond which she is already entitled.
The Commission determines that this provision is analogous to a �no
reprisal� clause. Complainant should seek EEO counseling to pursue this
claim, as it is properly treated as a new complaint rather than within
the context of settlement breach. Finally, we agree with the agency
that the letter of accommodation referenced in complainant's breach
claim letter does not fall under any of the terms of the settlement
agreement, and therefore cannot constitute grounds for a breach of the
settlement agreement. To the extent that complainant interpreted the
provisions of the settlement agreement as requiring the agency to provide
such a letter, it should have been reduced to writing as part of the
settlement agreement. Jenkins-Nye v. General Services Administration,
EEOC Appeal No. 01851903 (March 4, 1987). Accordingly, the agency's
decision 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:
July 20, 2000
____________________________
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
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.