0120091834
09-11-2009
Joyce A. Cartner, Complainant, v. Mike Donley, Secretary, Department of the Air Force, Agency.
Joyce A. Cartner,
Complainant,
v.
Mike Donley,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 0120091834
Agency No. 5W1C0716
DECISION
Complainant filed a timely appeal with this Commission from a final
decision (FAD) by the agency dated February 13, 2009, finding that it
was in compliance with the terms of the October 21, 2007 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 will remove complainant from the supervision of
[S1]. The agency will assign the Airman & Family Services Flight Chief
as complainant new immediate supervisor (S2) and rater effective upon
signature of all parties.
(2) The agency will assign complainant an office in the Manpower Wing
in the back hallway of the Airman and Family Readiness Center building.
Complainant will be permitted to move into the assigned office within 2
days of the office being equipped with phone functionality and computer
access.
(3) During the duty day, both complainant and S1 should not
have intentional contact with each other unless the contact is for
a legitimate business purpose during the performance of their duties.
This exception would permit brief professional communication to occur as
well as permit training and meeting functions which naturally require
both parties' involvement to occur. However, physical attendance at
weekly staff meetings that are conducted and ran by S1 are not required
of complainant. Any transmission of information which directly results
from the weekly meeting will be transmitted via e-mail to complainant
along with a copy to S2.
(4) Complainant will work the front desk on an as-needed basis to
help alleviate manning issues.
(3) If S1 vacates her current position, the terms of the [settlement
agreement] are no longer binding upon either the agency or complainant.
By letter to the agency dated February 25, 2009, complainant alleged that
the agency was in breach of the settlement agreement, and requested that
the agency specifically implement its terms. The record indicates that
complainant was moved to a new office space per the settlement agreement.
However, complainant received notice on February 19, 2009, that her
workstation will be moved to where she was prior to the settlement
agreement. Complainant alleged that the move was a violation of the
settlement agreement. In addition, complainant indicated that the agency
was assigning her desk duties and that communications were not provided
via e-mail.
In its FAD, the agency determined that there was no breach of the
settlement agreement. Complainant appealed the FAD. The only issue
she raised was the relocation of her workspace.
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).
The record includes a memorandum to complainant from the Commander
dated March 27, 2009, stating that S1 has been detailed to another Chief
position and will be moved to the new location permanently. Based on this
memorandum, the Commission finds that S1 is no longer in the same position
she was when the parties agreed to the settlement. The settlement
agreement clearly states that if S1 vacates her current position, the
terms of the [settlement agreement] are no longer binding upon either the
agency or complainant. As such, we find that the settlement agreement,
by operation of its own provisions, is no longer binding.1
CONCLUSION
Accordingly, we affirm the agency's final decision finding no breach of
the settlement agreement.
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
September 11, 2009
__________________
Date
1 We note that the reason for complainant's office move, limit on working
the front desk, and exception from weekly staff meetings was to reduce
interaction between complainant and S1. With the reassignment of S1
to another division, the settlement agreement is no longer required to
separate complainant from S1.
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0120091834
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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