Judith Kirman, Appellant,v.Carol M. Browner, Administrator, Environmental Protection Agency, Agency.

Equal Employment Opportunity CommissionJan 12, 1999
01981223 (E.E.O.C. Jan. 12, 1999)

01981223

01-12-1999

Judith Kirman, Appellant, v. Carol M. Browner, Administrator, Environmental Protection Agency, Agency.


Judith Kirman v. Environmental Protection Agency

01981223

January 12, 1999

Judith Kirman, )

Appellant, )

)

v. ) Appeal No. 01981223

) Agency No. 97-0075-R5

Carol M. Browner, )

Administrator, )

Environmental Protection Agency, )

Agency. )

_________________________________)

DECISION

Appellant filed the instant appeal from the agency's October 15, 1997

decision finding that appellant failed to timely raise her allegations

that the agency breached the settlement agreement entered into by the

parties on March 1, 1994.

EEOC Regulation 29 C.F.R. �1614.504(a) provides that any settlement

agreement knowingly and voluntarily agreed to by the parties shall be

binding on both parties. If the complainant believes that the agency

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

complainant shall notify the EEO Director of the alleged noncompliance

"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 appellant 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 re Chicago & E.I. Ry. Co., 94 F.2d 296 (7th

Cir. 1938). 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 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)).

Appellant's breach allegations involve incidents that occurred in the

Spring of 1994. A letter from appellant dated August 20, 1997 led to the

October 15, 1997 decision. Appellant argues on appeal that she raised

these breach allegations by letters dated March 29, 1994; April 29,

1994; July 6, 1994; and other unspecified contacts. The March 29, 1994

letter from appellant resulted in a decision being issued by the agency

on April 28, 1994. In the April 28, 1994 decision the agency found that

the agency had complied with the agreement and that if appellant wanted

to appeal the April 28, 1994 decision, she could file an appeal with

the Commission within 30 days of receiving the April 28, 1994 decision.

Commission records do not indicate that appellant has filed an appeal

from the April 28, 1994 agency decision.

The Commission finds that the instant breach allegations were apparent

and reasonably should have been apparent to appellant in March and/or

April of 1994. To the extent that appellant did raise these allegations

in March 1994, the Commission finds that these allegations have been

adjudicated by the agency in the April 28, 1994 agency decision.

Appellant was put on notice by the April 28, 1994 decision that the

agency, as of April 28, 1994, had found that the agency had complied

with the settlement agreement. Appellant is not raising allegations of

breach that stemmed from incidents occurring after (or discovered after)

April 28, 1994. Appellant's attempt by letter dated August 20, 1997 to

resurrect these claims or file new claims stemming from 1994 incidents

is untimely under �1614.504(a).

The agency's decision is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0795)

The Commission may, in its discretion, reconsider the decision in this

case if the appellant or the agency submits a written request containing

arguments or evidence which tend to establish that:

1. New and material evidence is available that was not readily available

when the previous decision was issued; or

2. The previous decision involved an erroneous interpretation of law,

regulation or material fact, or misapplication of established policy; or

3. The decision is of such exceptional nature as to have substantial

precedential implications.

Requests to reconsider, with supporting arguments or evidence, MUST

BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this

decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive

a timely request to reconsider filed by another party. Any argument in

opposition to the request to reconsider or cross request to reconsider

MUST be submitted to the Commission and to the requesting party

WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request

to reconsider. See 29 C.F.R. �1614.407. All requests and arguments

must bear proof of postmark and 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 filed on the date it is received

by the Commission.

Failure to file within the time period will result in dismissal of your

request for reconsideration as untimely. If extenuating circumstances

have prevented the timely filing of a request for reconsideration,

a written statement setting forth the circumstances which caused the

delay and 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. �l6l4.604(c).

RIGHT TO FILE A CIVIL ACTION (S0993)

It is the position of the Commission that 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.

You should be aware, however, that courts in some jurisdictions have

interpreted the Civil Rights Act of 1991 in a manner suggesting that

a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the

date that you receive this decision. To ensure that your civil action

is considered timely, you are advised to file it WITHIN THIRTY (30)

CALENDAR DAYS from the date that you receive this decision or to consult

an attorney concerning the applicable time period in the jurisdiction

in which your action would be filed. 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 (Z1092)

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:

January 12, 1999

DATE Ronnie Blumenthal, Director

Office of Federal Operations