0120091923
09-09-2009
Lorraine L. Townsend, Complainant, v. Ray Mabus, Secretary, Department of the Navy, Agency.
Lorraine L. Townsend,
Complainant,
v.
Ray Mabus,
Secretary,
Department of the Navy,
Agency.
Appeal No. 0120091923
Agency No. 066269500208
DECISION
Complainant filed a timely appeal with this Commission from a final
decision (FAD) by the agency dated March 9, 2009, finding that it was in
compliance with the terms of the July 10, 2008 settlement agreement into
which the parties entered before an EEOC Administrative Judge. See 29
C.F.R. � 1614.402; 29 C.F.R. � 1614.504(b); and 29 C.F.R. � 1614.405.
The settlement agreement provided, in pertinent part, that, in six months
from the date of the settlement agreement:
(1) If complainant maintains "good behavior" which consists of:
she will not raise her voice to her co-workers or her supervisors,
that she will not contradict her superiors in front of the auditees,
and that she will turn in all of her assignments and in accordance with
the Naval Audit Service audit handbook.
(2) The agency will give complainant a rating of "2" for calendar year
2007, a cost of living adjustment that goes with that rating, plus another
one percent that gives her the full cost of living for that period.
By notification to the agency dated February 6, 2009, complainant
alleged that the agency was in breach of the settlement agreement, and
requested that the agency specifically implement its terms. Specifically,
complainant alleged that the agency failed to change her rating and
provide her with the pay adjustments.
In its March 9, 2009 FAD, the agency concluded that complainant did not
comply with the settlement agreement. In particular, the agency provided
statements from employees indicating that complainant failed to maintain
"good behavior." The statements indicated that complainant raised
her voice to her supervisor on August 20, 2008, as well as a co-worker
on October 8, 2008. As such, the agency determined that there was no
obligation to adjust complainant's rating or pay for 2007.
Complainant filed the instant appeal asserting that the agency failed to
comply with the settlement agreement. Complainant indicated that the
terms of the agreement did not allow her to express any emotion such
as raising her voice. Further, complainant asserted that the agency
gathered evidence of her breach. Complainant attempts to respond to the
supporting statement by explaining the situations. The agency requests
that we affirm their final decision.
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, complainant complained about the terms of the
agreement. Complainant was aware of the terms when she agreed to
the settlement. Complainant was aware of her obligation to maintain
"good behavior" which was defined within the agreement as: she will not
raise her voice to her co-workers or her supervisors, that she will not
contradict her superiors in front of the auditees, and that she will
turn in all of her assignments and in accordance with the Naval Audit
Service audit handbook. Complainant failed to provide any documentation
to indicate that she complied with the "good behavior" clause of the
settlement agreement. The Commission finds that complainant breached
the settlement agreement. As such, the agency is not obligated to comply
with its provision of the settlement agreement.
CONCLUSION
Upon review, we AFFIRM the agency's final decision finding no breach of
the settlement agreement.
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 9, 2009
__________________
Date
2
0120091923
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
4
0120091923