Rita A. Doakes, Complainant,v.Lawrence H. Summers, Secretary, Department of the Treasury, Agency.

Equal Employment Opportunity CommissionDec 10, 1999
01976484 (E.E.O.C. Dec. 10, 1999)

01976484

12-10-1999

Rita A. Doakes, Complainant, v. Lawrence H. Summers, Secretary, Department of the Treasury, Agency.


Rita A. Doakes, )

Complainant, )

)

v. ) Appeal No. 01976484

)

Lawrence H. Summers, )

Secretary, )

Department of the Treasury, )

Agency. )

_______________________________ )

DECISION

Complainant filed the instant appeal from the agency's July 25, 1997

decision concerning complainant's claim that the agency breached the

settlement agreement dated February 4, 1997.<1> The settlement agreement

provided in part that the agency would:

[1]A. Reissue a new employee performance appraisal (Form 23601-1) with

the same rating of record. Part III of the appraisals will contain no

narrative comments. Remove the old appraisal dated November of 1996 from

the official performance files in both the Fort Worth and Washington,

DC offices, and replace with the revised appraisal.

Remove and destroy the mid-year appraisal dated May of 1996, from

the supervisor's file.

Recommend the review of the Complainant's position of Workmen's

Compensation Technician, GS-303-7, 90 days from December 2, 1996,

the manager will forward the results of the job review to Personnel

for action.

Complainant alleged that she had no evidence showing that the agency had

complied with provision 1(B) and she alleged that the agency breached

provision 1(C). In the July 25, 1997 decision the agency found that

the agency had complied with provision 1(B). The agency also found:

With respect to Item 1C of the settlement agreement, the record shows

that the position was not reviewed within 90 days, and therefore BEP

[Bureau of Engraving and Printing] officials did not comply with Item 1C.

However, we cannot order compliance because the position no longer exists.

In addition, because BEP has cured the issues raised in complaints 97-2070

and 96-2241, which relate to Items 1A and 1B of the settlement agreement,

we find that both complaints are moot. Therefore, it is inappropriate

to reinstate the complaints for further processing. . . .

The regulation set forth at 64 Fed. Reg 37,644, 37,660 (1999) (to be

codified as and hereinafter cited as 29 C.F.R. � 1614.504(a)) provides

that any settlement agreement knowingly and voluntarily agreed to by the

parties shall be binding on both parties. If the complainant believes

that the agency has failed to comply with the terms of a settlement

agreement, then the complainant shall notify the EEO Director of the

alleged noncompliance "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. Id.

Settlement agreements are contracts between the complainant and the agency

and it is the intent of the parties as expressed in the contract, and not

some unexpressed intention, that controls the contract's construction.

Eggleston v. Department of Veterans Affairs, EEOC Request No. 05900795

(Aug. 23, 1990); In re Chicago & E.I. Ry. Co., 94 F.2d 296 (7th

Cir. 1938). In reviewing settlement agreements to determine if there is

a breach, the Commission is often required to ascertain the intent of the

parties and will generally rely on the plain meaning rule. Wong v. United

States Postal Service, EEOC Request No. 05931097 (Apr. 29, 1994) (citing

Hyon v. United States Postal Service, EEOC Request No. 05910787 (Dec. 2,

1991)). This rule states that if the writing appears to be plain and

unambiguous on its face, then its meaning must be determined from the

four corners of the instrument without any resort to extrinsic evidence

of any nature. Id. (citing Montgomery Elevator v. Building Engineering

Service, 730 F.2d 377 (5th Cir. 1984)).

The Commission finds that the agency has admitted that it has not

complied with provision 1(C) of the settlement agreement. The agency has

not argued that it was unable to comply, during the time frame set forth

in provision 1(C), with provision 1(C) because of actions by complainant

or because of any changed circumstances. Therefore, we find that the

agency breached provision 1(C) of the settlement agreement.

The agency states that it can not now comply with the settlement

agreement. In her letter dated April 15, 1997 describing her breach

allegations complainant requested that her settled complaints be

reinstated. The Commission finds that the most appropriate remedy for our

finding of breach in the instant matter is reinstatement of the underlying

complaints. Therefore, we shall order the agency to reinstate the settled

complaints for further processing from the point processing ceased.

29 C.F.R. � 1614.504(c). Because of our disposition we do not address

whether the agency breached provision 1(B) of the settlement agreement.

The agency also found that the settled complaints were moot. The agency,

however, did not explicitly state that it was dismissing the underlying

complaints. On appeal, complainant has not addressed whether the

underlying complaints are moot; rather, complainant only addressed

the breach claims. The Commission finds that complainant has not been

given sufficient and clear notice that the underlying complaints were

being dismissed as moot. For the Commission to consider whether the

underlying complaints are moot in the instant circumstances would deny

complainant due process. Therefore, we shall not consider the question

of mootness in the instant decision. If the agency still believes the

underlying complaints are moot, then it may reissue a decision clearly

identifying the claims being dismissed, clearly identifying the reasons

for the dismissal, and providing appeal rights to the Commission.

The Commission finds that the agency breached provision 1(C) of the

settlement agreement.

ORDER

The agency shall, within 30 days of the date this decision becomes

final, reinstate the settled complaints for further processing from the

point processing ceased. The agency shall send a letter to complainant

informing her that the settled complaints are being reinstated. A copy

of the agency's letter reinstating the complaints must be sent to the

Compliance Officer referenced herein.

ATTORNEY'S FEES (H1199)

If complainant has been represented by an attorney (as defined by 64

Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter

referred to as 29 C.F.R. �1614.501(e)(1)(iii)), he/she is entitled to

an award of reasonable attorney's fees incurred in the processing of the

complaint. 29 C.F.R. �1614.501(e). The award of attorney's fees shall

be paid by the agency. The attorney shall submit a verified statement of

fees to the agency -- not to the Equal Employment Opportunity Commission,

Office of Federal Operations -- within thirty (30) calendar days of this

decision becoming final. The agency shall then process the claim for

attorney's fees in accordance with 29 C.F.R. �1614.501.

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 (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:

December 10, 1999

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:

_____________________ _________________________ 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.