0120081135
08-03-2009
Linda M. Smalls, Complainant, v. Rahm Emanuel, Chief of Staff, Executive Office of the President, Office of Administration, Agency.
Linda M. Smalls,
Complainant,
v.
Rahm Emanuel,
Chief of Staff,
Executive Office of the President,
Office of Administration,
Agency.
Appeal No. 0120081135
Agency No. OA-06-01
DECISION
Complainant filed a timely appeal with this Commission from a final
decision (FAD) by the agency dated December 5, 2007, finding that it was
in compliance with the terms of the May 23, 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.
ISSUE PRESENTED
Whether the agency breached the terms of the settlement agreement
by issuing a notification of personnel action form that stated that
complainant resigned in lieu of an involuntary action instead of stating
that she voluntarily retired.
BACKGROUND
The settlement agreement provided, in pertinent part, that:
(4) Retirement. The Complainant agrees and acknowledges that she
will knowingly and voluntarily accept early retirement at the close of
business on September 26, 2007, and her annuity becomes effective on
October 1, 2007.
By letter to the agency dated November 8, 2007, complainant alleged
that the agency breached the settlement agreement by issuing an official
notification of personnel action that stated that complainant resigned
in lieu of an involuntary action instead of stating that she voluntarily
retired. Complainant asked the agency to remedy the breach by issuing
a new personnel action reflecting a "retirement" and expunging the
resignation personnel notice from all records.
In its December 5, 2007 FAD, the agency concluded that it did not breach
the agreement. The FAD stated that the agency complied with the agreement
by submitting complainant's retirement package to the Office of Personnel
Management (OPM) so that complainant could retire effective September
26, 2007. The FAD further stated that the agency processed complainant's
retirement as a discontinued service retirement rather than a voluntary
early retirement because it provided complainant with approximately
$764.00 more in retirement annuity payments than she would have received
under voluntary early retirement. The FAD maintained that in accordance
with OPM guidelines, discontinued service retirement is designated
as "Resignation-ILIA [Resignation in lieu of involuntary action]."
The FAD stated that complainant began receiving her retirement annuity in
October 2007. The FAD further stated that the agency could supplement
the "remarks" section of the personnel notice with further explanation
of the processing of complainant's retirement benefits, but the agency
could not change the nature of the action on the personnel notice.
On appeal, complainant contends that the agency improperly found that
it did not breach the agreement and requests that the Commission order
the agency to reinstate her underlying EEO complaint. Specifically,
complainant reiterates her claim that the agency breached the agreement
when it processed an early involuntary retirement action "under the
guise of a resignation ILIA instead of an early voluntary retirement."
ANALYSIS AND FINDINGS
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, the agency agreed to allow complainant to retire
effective September 26, 2007, with an annuity effective October 1,
2007. The record reveals that in a letter dated August 3, 2007, the
agency informed complainant that her retirement would be processed as a
"discontinued service retirement." Complainant submitted an ''Application
for Immediate Retirement" on September 19, 2007. The agency then
submitted complainant's application to the Office of Personnel Management
(OPM).
However, under OPM regulations, complainant was not eligible to
voluntarily retire from the agency until approximately 19 months after the
September 26, 2007 retirement date set forth in the settlement agreement.
Thus, in order to obtain retirement benefits, the agency had to process
complainant's retirement as "discontinued service retirement." In order
to obtain a discontinued service retirement, the agency had to state that
complainant's resignation was in lieu of an involuntary action. CSRS
(Civil Service Retirement System) and FERS (Federal Employees Retirement
System) Handbook � 44A2.1-1 (April 1998). Moreover, the CSRS and FERS
Handbook states that when an employees resigns before the effectuation
of an involuntary separation, the nature of the action on the SF-50
Notification of Personnel Action must be "312/Resignation-ILIA." Id.
In accordance with these regulations, the record contains a copy of an
SF-50 stating that complainant resigned in lieu of an involuntary action
effective September 26, 2007. Moreover, the "remarks" section of the
SF-50 states that the reason for the resignation was to obtain benefits.
We find that, given the narrow circumstances under which complainant could
retire under federal regulations, the agency complied with the terms of
the agreement by preparing an SF-50 that would make complainant eligible
for discontinued service retirement. Therefore, we find no breach of
the agreement.
Accordingly, the Commission hereby AFFIRMS the agency's final decision.
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
_________8/3/09_________
Date
2
0120081135
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
4
0120081135