Phyllis Watson, Complainant,v.William S. Cohen, Secretary, Department of Defense, Agency.

Equal Employment Opportunity CommissionNov 2, 2000
01993608 (E.E.O.C. Nov. 2, 2000)

01993608

11-02-2000

Phyllis Watson, Complainant, v. William S. Cohen, Secretary, Department of Defense, Agency.


Phyllis Watson v. Department of Defense (Defense Logistics Agency)

01993608

11-02-00

.

Phyllis Watson,

Complainant,

v.

William S. Cohen,

Secretary,

Department of Defense,

Agency.

Appeal No. 01993608

Agency Nos. JQ-99-008, JQ-00-008B

DECISION

Complainant filed a timely appeal with this Commission from a final

decision (FAD) by the agency dated February 16, 1999, finding that it was

in compliance with the terms of the May 13, 1998 settlement agreement

into which the parties entered.<1> See EEOC Regulation 29 C.F.R. �

1614.402; 29 C.F.R. � 1614.504(b); and 29 C.F.R. � 1614.405.

The settlement agreement was signed by complainant, four of her

co-workers, and two supervisors. It provided, in pertinent part, that:

(1) Management agrees to provide and repair all locks at all desks

within the office. Employees will be at each others desks for only work

related reasons such as [to] use the computer or to do their work when

the employee is absent.

If employees are given multiple projects, management or the person

in charge will let the employee know what priority each task has.

Management will also make a concerted effort to give all employees

information about any change in office policy or workload.

Management agrees to provide Windows training for office employees as

the software is installed.

Management and the employees agree to attend a teambuilding training

course which give the Myers Briggs test to promote professional and

personal growth. This will take place within 90 days of the signing of

this agreement.

The parties agree not to file additional EEO complaints, grievances,

or appeals based on events occurring prior to the execution of the

Resolution Agreement.

The parties agree to accept as full settlement/resolution of the dispute,

the relief agreed upon as complete satisfaction of any and all claims

and demands.

On November 10, 1998, complainant filed a formal complaint (DLA#

JQ-99-008) alleging the same circumstances and incidents that formed

the basis of the informal complaint that was resolved on May 13, 1998.

Complainant alleged in the attachment to her formal complaint that

mediation was �not the forum for handling the issues in [her] complaint.�

In a letter of clarification dated December 10, 1998, complainant alleged

that the agency had breached the settlement agreement by not doing the

things stipulated to in it. She stated further that ninety days after

the settlement agreement was executed, she left the job on leave without

pay to move to a new duty station in another geographical location.

In its February 16, 1999 FAD, the agency concluded that the settlement

agreement had not been breached. The agency commented that the record

showed that management provided the job information, the locks, the

testing, and the team building training promised by the settlement

agreement to the individuals who remained at the job site. The agency

also found that the subject matter of DLA# JQ-99-008 was resolved by

the May 13, 1998, Mediation Resolution Agreement, and dismissed it for

stating the same claims as those already decided by the agency.

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 find no breach of the settlement agreement.

Complainant has not demonstrated that the agency failed to do those things

stipulated to in the settlement agreement, and the record contains no

evidence of such a breach. We find further that the agency correctly

dismissed complainant's November 10, 1998 complaint (DLA# JQ-99-008),

under 29 C.F.R. � 1614.107(a)(1)), for stating the same claims as those

previously decided by the agency. Once complainant signed the settlement

agreement, in which she �agreed not to file additional EEO complaints,

grievances, or appeals based on events occurring prior to the execution

of the Resolution Agreement,� she was precluded from bringing these

claims in an EEO complaint.

The decision of the agency is hereby AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0300)

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. 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 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).

COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)

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 (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:

______________________________

Carlton M. Hadden, Director

Office of Federal Operations

__11-02-00________________

Date

CERTIFICATE OF MAILING

For timeliness purposes, the Commission will presume that this decision

was received within five (5) calendar days after it was mailed. I certify

that this decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

__________________

Date

______________________________

1On 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.