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.