0120080894
05-20-2008
Margaret R. Souers, Complainant, v. Pete Geren, Secretary, Department of the Army, Agency.
Margaret R. Souers,
Complainant,
v.
Pete Geren,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120080894
Agency No. ARGORDON05DEC12271
DECISION
Complainant filed a timely appeal with this Commission from a final
agency decision, finding that it was in compliance with the terms of
the May 18, 2007 settlement agreement into which the parties entered.
See 29 C.F.R. �� 1614.402; .405; and .504(b).
The settlement agreement, which was read into the record by an EEOC
Administrative Judge (AJ) at the hearing stage, provided that:
[1] Effective Monday [complainant's] hours of work will be from 10:00
[a.m.] to 6:30 p.m. And those hours will be in effect for six months
from Monday [May 21, 2007]. At the end of six months her reporting
hours will be reviewed by both the Agency managers with input from
[complainant's] doctors. . . .
[2] During this period [complainant] cannot have more-within a 30-day
period have more than three unexcused late-nesses. During this period
[complainant] is prohibited from seeing any patients after four o'clock
p.m. unless she receives prior approval from her . . . [c]linical director
and/or medical director to see such patients.
[3] [Complainant] will be restored 40 hours of annual leave. With
respect to the 14-day suspension, that suspension will be reduced to
a 7-day suspension and the days of suspension will be applied over
. . . two pay periods. . . . [Complainant's] credential files will
be reviewed and corrected . . . [w]ithin 30 days. And after they are
reviewed and corrected, . . . [complainant] would have an opportunity
to review her credential files.
In an Order of Dismissal dated June 6, 2007, the AJ dismissed the
underlying complaint with prejudice due to the resolution.
By letter to the agency dated October 14, 2007, 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, with regard to paragraph 1, the agency interfered with
performance for the full contract period by reprimanding her for tardiness
on June 7 and August 20, 2007 and prematurely terminating the agreement
by proposing her removal before the six-month contract period ended.
Further, regarding paragraph 3, complainant stated that the agency did
not review or correct her file within thirty days and has not contacted
her to review the file.
Subsequently, the agency determined that it did not breach the May
18 agreement. Specifically, the agency stated that, with regard to
paragraph 1, there was no guarantee that complainant would remain
an employee of the agency for six months or would not be disciplined
during the six-month period specified in the agreement. The agency
explained that the six month time-frame referred to complainant's work
schedule only. The agency also stated that complainant's supervisor did
allow her three unexcused late arrivals to work during a 30-day period.
However, her continued tardiness, beyond the allowed three late arrivals
per 30 days, resulted in the decision to institute disciplinary action,
including her removal, and that complainant filed a mixed case appeal
on the removal with the Merit Systems Protection Board on November 11,
2007. Regarding paragraph 3, the agency stated that it offered to meet
with complainant regarding the content of her file and any delay can be
partially attributed to complainant. Further, the agency stated that
it met with complainant to review her file and the Deputy Commander for
Clinical Services determined that the record was accurate so there was
no need for revision.
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, we conclude that the agency properly found no
breach of the May 18, 2007 settlement agreement. Paragraph 2 of the
agreement states: "During this [six month] period [complainant] can
not [] - within a 30-day period [--] have more than three unexcused
late-nesses." The agreement does not state what recourse the agency
has for more than three unexcused late arrivals, but there can not
now be noncompliance for a matter not addressed in the agreement.
Consequently, we find that complainant's subsequent removal constitutes
a claim of a subsequent act of discrimination that should be processed
as a separate complaint rather than as a breach allegation. See 29
C.F.R. � 1614.504(c). The agency noted that complainant filed an MSPB
appeal on her removal. Regarding paragraph 3, we find that the agency
substantially complied with that provision. In the past, the Commission
has held that failure to satisfy a time frame specified in a settlement
agreement does not preclude a finding of substantial compliance of its
terms, especially when all required actions were subsequently completed.
Sortino v. United States Postal Service, EEOC Request No. 05950721
(Nov. 21, 1996) (citing Baron v. Department of the Treasury, EEOC Request
No. 05930277 (Sept. 30, 1993). In the instant case, the record reveals
that the agency reviewed complainant's credential files and found no
need for correction. Further, we find no evidence in the record that
the agency's delay was the result of bad faith or undermined the purpose
or effect of the agreement. Based on the above, we AFFIRM the final
agency decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0408)
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 (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 (Z0408)
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
May 20, 2008
__________________
Date
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0120080894
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120080894