01992665
02-10-2000
Katie M. Bradley, Complainant, v. F. Whitten Peters, Acting Secretary, Department of the Air Force, Agency.
Katie M. Bradley, )
Complainant, )
)
v. )
) Appeal No. 01992665
F. Whitten Peters, ) Agency No. ODIC980014
Acting Secretary, )
Department of the Air Force, )
Agency. )
____________________________________)
DECISION
On February 11, 1999, complainant filed a timely appeal with this
Commission from a final agency decision (FAD), dated January 12, 1999,
finding that it was in compliance with the terms of the December 2,
1997 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); EEOC Order No. 960, as amended.
The settlement agreement provided, in pertinent part, that:
To maintain open lines of communication and professionalism in all that
we do as team members,
To provide [complainant] with the appropriate briefings on Tri-Care,
[Complainant] will take personal responsibility to stay current on
matters directly or indirectly effecting her position as Medical Records
Administrator,
Management agrees not to reprise against the complainant for her
participation in a protected activity.
On March 30, 1998, complainant contacted the EEO office, alleging that the
agency was in breach of the settlement agreement, and requested that the
agency specifically implement its terms. Specifically, the complainant
alleged that the agency failed to comply with provisions A and D of the
agreement. Complainant contended that her supervisor overlooked her,
did not seek her expertise when making critical decisions, downgraded her
Civilian Performance Appraisal, and did not go over her performance plan
with her. Further, complainant alleged that management was taking steps
to remove her from her supervisory position and was not being �helpful�
by removing an agency employee (S Sgt A) from her supervision.
The agency concluded that it had not breached the settlement agreement.
On appeal, the agency contends that �[t]he lines of communication and
professionalism have been maintained....� According to the agency,
the removal of S Sgt. A was a management decision that did not violate
the agreement. Further, although complainant argues that her supervisor
did not go over her Performance plan with her, she did sign the plan
and therefore was aware of the agency's expectations. The agency also
refutes complainant's claim that management has tried to remove her from
her supervisory position, by noting that she has remained in the same
position she held prior to the agreement.
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).
In the instant case, we find that provision A of the settlement
agreement required the agency to �maintain open lines of communication
and professionalism� and �not to reprise against complainant for her
participation in a protected activity.� The record contains no evidence
reflecting that the agency has failed to meet these obligations.
Complainant alleged that the agency breach the settlement agreement
by purportedly failing to seek her advice, downgrading her appraisal,
removing Ssgt. A from her supervision, and taking steps to remove her
from her position. We do not find that these actions are covered by
the settlement agreement. Regarding complainant's contention that the
agency breached provision D, the Commission has held that a claim of
reprisal in violation of a settlement agreement's �no reprisal� clause
is to be processed as a separate complaint rather than as a breach of
the settlement agreement. Bindal v. Department of Veterans Affairs,
EEOC Request No. 05900225 (August 9, 1990). Moreover, Fed. Reg. 37,644,
37,656 (1999) (to be codified and hereinafter referred to as 29 C.F.R. �
1614.504(c)) provides that �[a]llegations that subsequent acts of
discrimination violate a settlement agreement shall be processed as
separate complaints.� Therefore, if complainant wishes to pursue this
claim, she is advised to contact an EEO Counselor.
Accordingly, the agency's decision finding no breach of the settlement
agreement was proper and is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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). 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).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S1199)
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:
February 10, 2000
____________________________
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_______________ __________________________
Date Equal Employment Assistant1On 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.