Louise L. White, Complainant,v.William S. Cohen, Secretary, Department of Defense, (Defense Logistics Agency), Agency.

Equal Employment Opportunity CommissionNov 27, 2000
01986618 (E.E.O.C. Nov. 27, 2000)

01986618

11-27-2000

Louise L. White, Complainant, v. William S. Cohen, Secretary, Department of Defense, (Defense Logistics Agency), Agency.


Louise L. White v. Department of Defense (DLA)

01986618

November 27, 2000

.

Louise L. White,

Complainant,

v.

William S. Cohen,

Secretary,

Department of Defense,

(Defense Logistics Agency),

Agency.

Appeal No. 01986618

DECISION

Complainant filed a timely appeal with this Commission from a final

decision (FAD) by the agency dated July 30, 1998, finding that it was in

compliance with the terms of the September 15, 1994 settlement agreement

into which the parties entered.<1> 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:

(1) I [Person Al], agree to make my supervisor aware that I wish to

attend a Managing Diversity course, and when made available, I further

agree to attend the course.

By letter to the agency dated March 21, 1995, complainant alleged that

the agency breached the settlement agreement, and requested that the

agency specifically implement its terms. Specifically, complainant

alleged that Person A failed to attend the �agreed upon number of hours

of diversity training.�

In a prior appeal, the Commission found that the agency failed to provide

evidence that any Managing Diversity course was available or that Person

A attended such a course. The Commission remanded the matter to the

agency for supplementation of the record in support of its determination

that it had complied with the specific terms of the agreement relating to

the Managing Diversity course. White v. Department of Defense (Defense

Logistics Agency), EEOC Appeal No. 01965442 (January 23, 1998). On July

30, 1998, the agency again issued a decision dismissing complainant's

breach claim, finding that Person A attended a Managing Diversity course

on March 25, 1998. The agency concluded that it was in full compliance

with the terms of the September 15, 1994 agreement.

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, the record contains a copy of an agency document

identified as a Class Data Report. Therein, Person A is listed on

the roster for a course entitled �Managing Diversity in DLA,� on March

25, 1998. The settlement agreement did not require, as complainant

argues, any specific number of hours in a Managing Diversity course.

Moreover, the agreement does not require a time frame in which the course

was to be completed. In applying the plain meaning rule, we find that if

complainant wished to require a particular number hours of training to be

completed within a specific period of time, she and/or her representative

should have negotiated for such terms when the agreement was executed

by the parties. Unexpressed intentions do not control the contract's

construction. See Eggleston v. Department of Veterans Affairs, EEOC

Request No. 05900795 (August 23, 1990). To the extent that the agency

breached the agreement by not providing diversity training to Person A

until March 1998, any purported breach was cured when Person A enrolled

for training in March 1998. The Commission determines that complainant

failed to show that the agency breached the settlement agreement. The

agency's July 30, 1998 decision finding no settlement breach is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0900)

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 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 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 (S0900)

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:

__________________________________

Carlton M. Hadden, Director

Office of Federal Operations

November 27, 2000

___________________

Date

__________________

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 29 C.F.R. Part 1614 in deciding the

present appeal. The regulations, as amended, may also be found at the

Commission's website at www.eeoc.gov.