01992657
03-07-2000
Margie Shorter, Complainant, v. Daniel R. Glickman, Secretary, Department of Agriculture, Agency.
Margie Shorter, )
Complainant, )
)
v. ) Appeal No. 01992657
) Agency No. 980315
Daniel R. Glickman, )
Secretary, )
Department of Agriculture, )
Agency. )
______________________________)
DECISION
On February 11, 1999, the complainant filed a timely appeal with this
Commission from a final decision (FAD) by the agency dated January 11,
1999, finding that it was in substantial compliance with the terms
of the May 23, 1997 settlement agreement (SA) into which the parties
entered.<1> See 64 Fed. Reg. 37,644, 37,659, 37,660 (1999) (to be
codified and hereinafter referred to as EEOC Regulation 29 C.F.R. ��
1614.402, 1614.405, 1614.504(b)).
In exchange for withdrawing her informal complaint of non-selection
based on race (African American), gender (female) and age (June 5, 1945)
discrimination the agency agreed in pertinent part, to:
temporarily promote the complainant effective May 25, 1997 thru August
16, 1997, to the position of GS-436-12 Supervisory Plant Protection and
Quarantine Officer, Atlanta, Georgia . . . .
Additionally, the SA contained a handwritten asterisk at the end of
the above term and at the bottom of the page the following handwritten
statement: �[c]omplainant will be promoted to the GS-436-12/6 level.�
The statement was initialed by the EEO counselor who had signed the SA,
but was not initialed by the complainant. It is undisputed that the
handwritten modification to the SA was added after the pro se complainant
had signed the SA and not in her presence.
By letter to the agency dated January 21, 1998, the complainant requested
full compliance with the SA as negotiated or the right to file a formal
complaint. Specifically, the complainant alleged that the agency failed
to permanently promote her after she had completed the agreed upon three
months of a temporary promotion assignment, as well as, the two week
developmental assignment to enhance her supervisory and administrative
skills.
In its January 11, 1999 FAD, the agency concluded that it had
substantially complied with the SA. The agency admitted that it had
incorrectly documented the effective date of the complainant's temporary
promotion and ordered that the personnel records be corrected, and
retroactive back pay (with interest) and benefits be paid for the period
May 25, 1997, through June 7, 1997. The agency further stated that
it did not agree to permanently promote the complainant. The agency
contended that the handwritten modification was only to clarify the
step level at which the complainant would be paid during her temporary
promotion assignment. Therefore, the agency informed the complainant
that it would not reinstate her complaint.
On appeal, the complainant, through her attorney, asserted that the
handwritten modification was added to the SA by the EEO counselor to
represent her intent to withdraw her EEO complaint in exchange for a
permanent promotion. The complainant asserted that prior to signing
the SA, she contacted the EEO counselor and pointed out that it did
not contain the agreed upon permanent promotion. She further asserted
that the EEO counselor assured her that the term would be added, however
the SA had to be signed now. The complainant signed the SA and the EEO
counselor modified the agreement.
The complainant contended that there was no meeting of the minds, that
she would not have withdrawn her complaint for a temporary promotion
only, that the agency violated the spirit of the SA and intentionally
failed to comply with the SA which she had entered into in good faith.
64 Fed. Reg. 37,644, 37,656 (1999)(to be codified and hereinafter
referred to as 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 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, it appears that the agency believed the handwritten
modification was ambiguous because it sought a clarification statement
from the EEO counselor who had written it. The EEO counselor stated the
modification was made to ensure that the complainant was temporarily
promoted to and paid at the GS-12/6 level and that during resolution
discussions the agency did not offer to permanently promote the
complainant. However, the complainant contended that the EEO counselor
assured her that the modification would be made to ensure her permanent
promotion.
The Commission has held that where the meaning of the document is open to
question, the circumstances under which the contract was made may always
be set forth in interpreting the contract. See Johnson v. Department of
the Interior, EEOC Request No. 05930532 (March 31, 1994). Moreover, while
the general principles of contract law lean toward the interpretation
favoring validity, a party may avoid an otherwise valid contract because
of a mutual mistake in its formation, that is, when the parties' common
intention has gone awry. Id. We find that, based on the facts of this
case, the SA entered into on May 23, 1997, does not represent a meeting
of the minds of the parties and is, therefore, void for vagueness.
See Mullen v. Department of the Navy, EEOC Request No. 05890349 (May
18, 1989).
Accordingly, the agency's decision to deny the complainant's request
to reopen her complaint was improper and is VACATED. The complainant's
complaint is REMANDED to the agency for further processing in accordance
with this decision and the applicable regulations.
ORDER (E1199)
The agency is ORDERED to process the remanded complaint in accordance
with 64 Fed. Reg. 37,644, 37,656-7 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. � 1614.108). The agency shall acknowledge to the
complainant that it has received the remanded claims within thirty (30)
calendar days of the date this decision becomes final. The agency shall
issue to complainant a copy of the investigative file and also shall
notify complainant of the appropriate rights within one hundred fifty
(150) calendar days of the date this decision becomes final, unless the
matter is otherwise resolved prior to that time. If the complainant
requests a final decision without a hearing, the agency shall issue
a final decision within sixty (60) days of receipt of complainant's
request.
A copy of the agency's letter of acknowledgment to complainant and an
copy of the notice that transmits the investigative file and notice of
rights must be sent 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). 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 7, 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:
__________________________ _________________________
1 On 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.