0120091993
07-16-2009
Marsha E. Houser, Complainant, v. Eric H. Holder, Jr., Attorney General, Department of Justice, Agency.
Marsha E. Houser,
Complainant,
v.
Eric H. Holder, Jr.,
Attorney General,
Department of Justice,
Agency.
Appeal No. 0120091993
Agency No. M07-0028
DECISION
Complainant filed an appeal with this Commission from an agency decision
dated December 8, 2008, finding that it was in compliance with the terms
of the November 14, 2007 settlement agreement into which the parties
entered. The settlement agreement provided, in pertinent part, that:
(1) The agency will reassign complainant to the United States
Marshals Service, District of Columbia Superior Court, in the position
of an accounting technician, GS-525-7.
(2) The agency agrees to rate complainant's performance as
satisfactory for the rating year ending September 30, 2007.
On appeal, complainant alleges that she filed a complaint claiming breach
of the settlement agreement on March 25, 2008. She also alleges on
appeal that her former supervisors spoke about her negatively to her
new supervisors, who in turn created a hostile work environment for
her at her post-reassignment job. Complainant alleged on appeal that
her new supervisor made rude and derogatory comments about her to other
employees, did not provide her with appropriate training, and did not
give her proper work assignments.
In its decision, the agency noted that complainant claimed the agency
was in breach of its settlement agreement in electronic mail that she
sent to the agency on February 27, 2008 and March 4, 2008. The agency
found that it had not breached the settlement agreement because it had
complied with paragraphs 1 and 2 of the agreement. The agency stated
that it complied with paragraph 1 when, effective November 11, 2007, it
reassigned complainant to the position of an accounting technician in the
District of Columbia Superior Court. The agency stated that it complied
with paragraph 2 when it provided complainant with a satisfactory rating
for the period ending September 30, 2007. Complainant signed off on
this satisfactory rating on December 4, 2007.
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 has failed to show that the agency
breached the settlement agreement. To the extent that complainant is
alleging that subsequent acts of discrimination violated the terms of
the settlement agreement, those claims should be processed as a separate
complaint and not as a breach claim. See 29 C.F.R. � 1614.504(c).
The Commission does not address in this decision whether such claims
would be considered timely raised with an EEO Counselor.
Accordingly, the agency decision finding no breach of the settlement
agreement is AFFIRMED.
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
July 16, 2009
__________________
Date
2
0120091993
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
3
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