01992634
10-20-1999
Miriam Y. Dixon, Appellant, v. F. Whitten Peters, Acting Secretary, Department of the Air Force, Agency.
Miriam Y. Dixon v. Department of the Air Force
01992634
October 20, 1999
Miriam Y. Dixon, )
Appellant, )
)
v. ) Appeal No. 01992634
) Agency No. AL900990383
F. Whitten Peters, )
Acting Secretary, )
Department of the Air Force, )
Agency. )
)
DECISION
On February 11, 1999, appellant filed a timely appeal with this
Commission from a final decision (FAD) by the agency dated January 12,
1999, finding that it was in compliance with the terms of the February
24, 1998 settlement agreement into which the parties entered. See 29
C.F.R. ��1614.402, .504(b); EEOC Order No. 960, as amended.
The settlement agreement provided, in pertinent part, that:
(1) the agency agrees to work with the Civilian Personnel Office to find
and place appellant in a new suitable local job;
(2) the agency agrees to work with appellant to rewrite the appellant's
position description and job title by May 30, 1998;
(3) the agency agrees to investigate details regarding a job split between
facilities and systems to expand appellant's job skills, knowledge,
and job opportunities;
(4) the agency agrees that the Letter of Reprimand will not be used as
a factor in any performance appraisal for the appellant;
(5) the appellant agrees to obtain a current medical evaluation by April
15, 1998;
(6) the appellant agrees not to file a separate EEO complaint of reprisal
regarding the issuance of the Letter or Reprimand; and
(7) the appellant agrees to forego her request to attend Facility
Management Training.
By letter to the agency dated August 3, 1998, appellant alleged that the
agency was in breach of the settlement agreement, and requested that
the agency implement its terms. Specifically, appellant alleged that
the agency failed to properly rewrite appellant's job description and
job title with appellant's assistance as agreed to in provision (2).
Also, appellant requests the reinstatement of her original complaint
because appellant interpreted the settlement agreement in one way and
the agency did so in another.
In its January 12, 1999 FAD, the agency concluded that appellant's job
description and job title were edited by appellant's current supervisor.
Appellant's supervisor included appellant in the process of rewriting
the description. The description was then submitted to the classifier in
order to provide the position with a title. This procedure was completed
before May 30, 1998. The agency found that appellant was merely upset
with the outcome of the process. The agency also determined that it
did not breach the settlement agreement. This appeal followed.
On appeal, appellant includes allegations of breach with regard to
provisions (1) and (3) of the settlement agreement. The agency responded
to all three allegations of breach in its response to the appeal.
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.
That section further provides that if the complainant believes that the
agency has failed to comply with the terms of a settlement agreement,
the complainant shall notify the Director of Equal Employment Opportunity
of the alleged noncompliance with the settlement agreement within 30
days of when the complainant knew or should have known of the alleged
noncompliance. 29 C.F.R. �1614.504(a). The complainant may request
that the terms of the settlement agreement be specifically implemented
or request that the complaint be reinstated for further processing from
the point processing ceased.
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 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, appellant alleges that the contract is not valid
because she and the agency had a mutual mistake of fact. She asserts
that there was no "meeting of the minds" and, therefore, no agreement
was reached. One who attacks a settlement agreement bears the burden
of showing fraud or mutual mistake. See Asberry v. United States Postal
Service, 692 F.2d 1378, 1380 (Fed. Cir. 1982). The party attempting to
void the contract must prove that: (1) the mistake related to a basic
assumption upon which the contract was made; (2) the mistake had a
material effect upon the agreement; and (3) the mistaken party did not
assume or legally bear the risk as to the mistaken fact. Restatement
(Second) of Contracts 152; see also Skyline Corp. v. National Labor
Relations Board, 613 F.2d 1328 (5th Cir. 1980).
The record indicates that both parties voluntarily entered into
the agreement. Both the agency and appellant agreed to work to find
appellant a new suitable local job, to work to rewrite the appellant's
job description and job title, and to investigate details regarding a
job split for appellant. The settlement signed by both parties reflects
such an agreement. Upon review, we find that appellant has failed to
show fraud or mutual mistake. Therefore, the Commission finds that the
settlement agreement is valid.
Appellant further alleges that the agency has breached the settlement
agreement with respect to provisions (1), (2), and (3).
Provision (1)
Appellant alleges that the agency breached the settlement agreement when
it failed to comply with provision (1). In this provision, the agency
agreed to find appellant a new suitable local job. Upon review of the
file, we find that appellant was moved from one office complex to another
location. The record indicates that appellant is under a new supervisor
at a position to which she is suited. Reviewing the plain and unambiguous
meaning of the settlement agreement, we find that the agency has fulfilled
its obligation with respect to this provision of the agreement.
Provision (2)
In her complaint, appellant alleges that the agency has failed to work
to rewrite her job description and job title. The settlement agreement
states that the agency is to work with appellant to rewrite her position
description and job title by May 30, 1998. The agency assigned the
task of rewriting appellant's job description to her new supervisor.
It appears from the record that the supervisor consulted appellant on
both the job description and the job title prior to its submission to
the Civilian Personnel Classifier. It was the classifier who chose to
change the position name from the submitted name to "Office Automation
Clerk." Upon review of the record, we find that appellant participated
in the revision process and the agency worked to rewrite appellant's job
description and job title. Although appellant is not pleased with the
outcome of the revision, the record does not indicate that the agency
committed a breach. Therefore, upon review of the record and the plain
meaning of the settlement agreement, we find that the agency did not
breach provision (2).
Provision (3)
Appellant further alleges that the agency breached provision (3) of
the settlement agreement in which the agency agreed to investigate a
job split between facilities in order to expand appellant's job skills.
The settlement agreement merely states that the agency shall agree to
investigate details regarding a job split. The record indicates that an
investigation was conducted as to the feasibility of the job split for
appellant. It was found that the job split would be unfeasible because
it would place appellant back under the supervision of the individuals
against whom she filed her EEO complaint and because of limited number
of positions available to appellant. Therefore, the Commission finds
that the agency did not breach provision (3) of the settlement agreement.
CONCLUSION
Accordingly, the decision of the agency is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. 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 (Z1092)
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:
Oct. 20, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations