01991756
03-14-2000
Lowanda R. Rivers, Complainant, v. William S. Cohen, Secretary, Department of Defense, (Army & Air Force Exchange Service), Agency.
Lowanda R. Rivers, )
Complainant, )
)
v. ) Appeal No. 01991756
) Agency No. 95.102P
William S. Cohen, )
Secretary, )
Department of Defense, )
(Army & Air Force Exchange Service), )
Agency. )
____________________________________)
DECISION
Complainant timely appealed the agency's final decision not to reinstate
her complaint of unlawful employment discrimination that the parties had
settled.<1> See 64 Fed. Reg. 37,644, 37,659-37,660 (1999) (to be codified
and hereinafter referred to as 29 C.F.R. �� 1614.402(a), 1614.504).
The record indicates that complainant, a former agency employee in the
Misawa Air Base in Japan, filed a formal complaint dated March 9, 1995,
concerning a constructive discharge, a performance evaluation report,
an award, a promotion, and a reassignment. Complainant also alleged
that the agency failed to pay for her household goods to be shipped
to her home of record upon her resignation effective December 9, 1994.
Thereafter, on January 27, 1997, the parties entered into a settlement
agreement, which provided, in pertinent part, that:
The agency would pay complainant $2,710.00 as unspecified damages;
complainant would be responsible for her attorney's fees and for any tax
consequences of this payment. The agency would waive and release any and
all demands, rights, complaints, future complaints, grievances, causes
of action of whatsoever kind and nature arising out of complainant's
employment with the agency and agree to reimburse, indemnify, and hold
her harmless from any and all such causes of action, claims, liens,
right or subrogated or contribution interests incident to or resulting
from her employment with the agency.
By letter dated December 2, 1998, complainant alleged that the agency
breached the terms of the settlement agreement. Specifically, complainant
indicated that the agency was trying to collect payments from her for
her household goods shipment and a �DPP bill� which were resolved through
the settlement agreement. Complainant stated that the agency garnished
her 1997 tax refunds and ruined her credit report as a result.
On March 3, 1999, the agency stated that it was trying to resolve the
alleged breach claim and would respond to complainant once a determination
was made.
On appeal, complainant submits a copy of an agency letter dated June 30,
1998, demanding her payment of $2,870.40 which she incurred for shipment
of her household goods from Oakland, California to Orlando, Florida.
In response to complainant's appeal, the agency submits that it is in
the process of determining if the settlement agreement has been breached.
EEOC Regulation 29 C.F.R. � 1614.504 provides that if the complainant
believes that the agency failed to comply with the terms of a settlement
agreement, the complainant should notify the Director of Equal Employment
Opportunity, in writing, of the alleged noncompliance with the settlement
agreement, within thirty (30) days of when the complainant knew or should
have known of the alleged noncompliance. The complainant may request that
the terms of the settlement agreement be specifically implemented or,
alternatively, that the complaint be reinstated for further processing
from the point processing ceased.
The agency shall resolve the matter and respond to the complainant,
in writing. If the agency has not responded to the complainant, in
writing, or if the complainant is not satisfied with the agency's attempt
to resolve the matter, the complainant may appeal to the Commission for
a determination as to whether the agency has complied with the terms of
the settlement agreement or final decision.
The Commission has held that settlement agreements are contracts between
the complainant and the agency and it is the intent of the parties
as expressed in the contract, and not some unexpressed intention, that
controls the contract's construction. Eggleston v. Department of Veterans
Affairs, EEOC Request No. 05900795 (August 23, 1990). In addition, the
Commission generally follows the rule that if a 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 v. Building Engineering Services,
730 F.2d 377 (5th Cir. 1984). The Commission has followed this rule
when interpreting settlement agreements. The Commission's policy in
this regard is based on the premise that the face of the agreement best
reflects the understanding of the parties.
The settlement agreement provided that the agency would waive and
release complainant from �any causes of action of whatsoever kind and
nature arising out of [her] employment with the agency.� The agency also
agreed to �reimburse, indemnify, and hold [complainant] harmless from any
and all such causes of actions . . . incident to or resulting from her
employment with the agency.� Complainant alleged that the agency breached
the settlement agreement when it was trying to collect payments for the
expenses she incurred for her household goods shipment and a �DPP bill�
in connection with her resignation. There is no evidence in the record
whether it is the normal and general practice of the agency to pay these
expenses at issue when an employee resigns from employment. If it is,
the agency should have paid complainant's expenses at issue under the
terms of the settlement agreement. Based on the foregoing, the record is
insufficient for the Commission to determine whether the agency breached
the settlement agreement. Therefore, the agency is Ordered, as stated
below, to conduct a supplemental investigation concerning the matter.
Accordingly, the agency's final decision is hereby VACATED, and the case
is REMANDED to the agency for further processing in accordance with this
decision and applicable regulations.
ORDER
The agency, within thirty (30) calendar days of the date this decision
becomes final, is ORDERED to conduct a supplemental investigation as
follows:
The agency shall provide in the record any relevant information and/or
necessary documentation to determine whether it is the normal and
general practice of the agency to pay the expenses at issue, i.e.,
shipment of household goods and a �DPP bill,� when an employee resigns
from employment.
Based on the foregoing, the agency shall determine whether it has breached
the settlement agreement at issue; then, the agency shall specifically
enforce the terms thereof and/or issue a new final decision.
The agency shall provide documentation of the specific enforcement of
the settlement agreement and/or a copy of the final decision to the
Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K1199)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to the
complainant. If the agency does not comply with the Commission's order,
the complainant may petition the Commission for enforcement of the order.
29 C.F.R. � 1614.503(a). The complainant also has the right to file a
civil action to enforce compliance with the Commission's order prior
to or following an administrative petition for enforcement. See 64
Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. �� 1614.407, 1614.408), and 29 C.F.R. �
1614.503(g). Alternatively, the complainant has the right to file a
civil action on the underlying complaint in accordance with the paragraph
below entitled "Right to File A Civil Action." 29 C.F.R. �� 1614.407
and 1614.408. A civil action for enforcement or a civil action on the
underlying complaint is subject to the deadline stated in 42 U.S.C. �
2000e-16(c)(Supp. V 1993). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 64 Fed. Reg. 37,644, 37,659 (1999)
(to be codified and hereinafter referred to as 29 C.F.R. � 1614.409).
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); Equal Employment Opportunity Management
Directive for 29 C.F.R. � 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 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
(R1199)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court WITHIN NINETY (90) CALENDAR DAYS from the date
that you receive this decision. In the alternative, you may file a
civil action AFTER ONE HUNDRED AND EIGHTY (180) CALENDAR DAYS of the date
you filed your complaint with the agency, or filed your appeal with the
Commission. 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. 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:
March 14, 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:
_______________ __________________________
Date Equal Employment Assistant1On 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.