0120092469
09-17-2009
Kathy A. Kennedy,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120092469
Agency Nos. 200I-005-2008100557 & 200I-005-2008101807
DECISION
Complainant filed a timely appeal with this Commission from a final
agency decision dated May 1, 2009, finding that it was in compliance
with the terms of the March 12, 2009 settlement agreement into which
the parties entered. See 29 C.F.R. �� 1614.402; 1614.405 & 1614.504(b).
The settlement agreement provided the following, in pertinent part.
The agency hereby agrees to pay complainant $6,373.88 and further
agrees to allow complainant to report to work one half-hour
before or after her regular starting time of 9AM and she shall
depart 5 hours later.
By letter to the agency dated March 25, 2009, complainant alleged that
the agency was in breach of the settlement agreement, and requested that
the agency provide her with an amended settlement for the remainder of
money due. Specifically, complainant alleged that the agency agreed to
pay her for leave without pay (LWOP) used between December 1, 2007 and
the date of hearing/settlement (March 12, 2009). Complainant alleged
that the agency miscalculated the number of hours of LWOP used as well
as her hourly rate, and that it should have paid her $12,399.62 (357.75
hours x $34.66 hourly rate).
In its May 1, 2009 final decision, the agency concluded that it is
in compliance with the March 12 agreement. Specifically, the agency
stated that the agreement provides an exact amount of $6,373.88 for
payment and does not refer to payment based on calculation of LWOP hours
and hourly rate. The agency noted how $6,373.88 was reached during
settlement negotiations and stated that amount was directly deposited
into complainant's bank account on April 13, 2009. The agency provided
a printout evidencing payment on April 13, 2009. The instant appeal
from complainant followed.
On appeal, complainant stated that negotiations were at the hearing stage
and that the assigned Administrative Judge (AJ) instructed the agency to
provide the exact amount in the agreement. Complainant added that she
did not question the amount indicated because she did not have access to
the pertinent information and did not believe the agency would provide
inaccurate information to an AJ. Complainant alleged bad faith by the
agency.
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).
In the instant case, we agree with the agency and find that, based on
"the plain meaning rule," complainant failed to establish that the
agency breached the March 12 agreement. We find that the language
here is clear and unambiguous and that complainant appears unhappy with
the provisions to which she agreed. However, we cannot set aside the
agreement or order specific performance as complainant requested because
both parties incurred legal detriment and the agency proved that it paid
complainant as written in the agreement. We AFFIRM the final agency
decision finding compliance.
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 17, 2009
__________________
Date
2
0120092469
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
4
0120092469