Loisv.Lema, Complainant, v. Bruce Babbitt, Secretary, Department of the Interior, Agency.

Equal Employment Opportunity CommissionJan 24, 2000
01990017 (E.E.O.C. Jan. 24, 2000)

01990017

01-24-2000

Lois V. Lema, Complainant, v. Bruce Babbitt, Secretary, Department of the Interior, Agency.


Lois V. Lema v. Department of the Interior

01990017

January 24, 2000

Lois V. Lema, )

Complainant, )

)

v. )

) Appeal No. 01990017

Bruce Babbitt, ) Agency No. FNP-96-096

Secretary, )

Department of the Interior, )

Agency. )

______________________________)

DECISION

On September 29, 1998, complainant filed a timely appeal with this

Commission from a final decision (FAD) by the agency dated August 31,

1998, finding that it was in compliance with the terms of the December

9, 1997 settlement agreement into which the parties entered.<1>

See 64 Fed. Reg. 37,644, 37,659, 37,660 (1999) to be codified at 29

C.F.R. ��1614.402, .504(b)); EEOC Order No. 960, as amended.

The settlement agreement provided, in pertinent part, that:

Upon the execution of this agreement, the Agency agrees to continue to

assist the Complainant in her efforts to obtain disability retirement

from the Office of Personnel Management.

(3) Upon the execution of this agreement, the Agency agrees to excuse the

Complainant 96 hours of advanced sick leave she presently owes the Agency.

(4) Upon the execution of this agreement, the Agency agrees to continue to

grant the Complainant Leave Without Pay as necessitated by her medical

limitations.

(5) Upon the execution of this agreement, the Agency agrees to grant the

Complainant administrative leave for the pay period commencing December 7,

1997 and ending December 20, 1997.

By letters to the agency, complainant alleged breach of the settlement

agreement, and requested that her complaint be reinstated.<2>

Specifically, in a letter dated March 25, 1998, complainant alleged

that the agency breached provision 4 of the settlement agreement by

purportedly failing to grant her Leave Without Pay (LWOP) when she was

absent due to her illness; and that instead she was charged as AWOL.

On April 13, 1998 complainant again wrote to the agency contending that

she was charged with AWOL when she injured her knee and was unable to

leave her home. Complainant also indicated that her request for annual

leave on Christmas Eve, for religious reasons, was denied. In a letter

dated July 14, 1998, complainant reiterated that the agency has breached

the settlement agreement.

In its August 31, 1998 FAD, the agency concluded that the settlement

agreement had not been breached. Specifically, the FAD indicated that the

agency had accommodated complainant's disability (asthma) by restructuring

her job and eliminating duties that would aggravate her condition.

The FAD also indicated that complainant was granted leave without pay:

over 1,000 hours during 1997 and over 530 hours up to May 19, 1998, when

her retirement became effective. The agency acknowledged that effective

February 2, 1998, complainant was charged with AWOL because she failed

to notify her immediate supervisor that she was unable to work, which

is an established agency procedure.

EEOC Regulation 64 Fed. Reg. 37,644, 37,660 to be codified at 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, complainant argues that the agency has breached

provision 4 of the agreement. Complainant admits that she was able to

leave on disability retirement (provision 2), and agrees with the agency

that her negative advance leave balance was removed (provision 3) and

that she was granted the appropriate administrative leave (provision 5).

Based on a review of the record, however, we find that the agency did

not breach provision 4 of the settlement agreement. The FAD states

that complainant has been granted numerous hours of LWOP, but that on

February 2, 1998 she was found to be AWOL based on her failure to contact

her supervisor. We find that the agency met its affirmative obligation

pursuant to provision 4 by continuing "to grant the complainant Leave

Without Pay as necessitated by her medical condition." The agency's

determination to consider complainant AWOL on February 2, 1998, was not a

breach of the settlement agreement. The Commission notes that in several

instances, complainant acknowledges that she was AWOL, or faced the

prospect of being considered AWOL. The Commission agrees with the agency's

argument on appeal, wherein it asserts that its obligations pursuant

to provision 4 of the settlement agreement did not mandate excusing

complainant for following the proper procedures in requesting leave.

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:

January 24, 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:

___________ __________________________________

1On 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.

2We also note that the letters set forth new claims of harassment

which are not the subject of the settlement agreement and our decision.

Complainant is advised to contact an EEO Counselor if she wishes to

further pursue these matters.