01995945
09-26-2000
Rosana S. Mora, Complainant, v. Janet Reno, Attorney General, Department of Justice, Immigration and Naturalization Service, Agency.
Rosana S. Mora v. Department of Justice
01995945
09-26-00
.
Rosana S. Mora,
Complainant,
v.
Janet Reno,
Attorney General,
Department of Justice,
Immigration and Naturalization Service,
Agency.
Appeal No. 01995945
Agency No. I-98-C066
DECISION
INTRODUCTION
Complainant timely filed an appeal with this Commission from the final
decision of the agency (FAD) dated June 25, 1999, in which the agency
determined that it had not breached a settlement agreement entered into
on October 6, 1998.<1> See 29 C.F.R. � 1614.402; 29 C.F.R. � 1614.504(b);
and 29 C.F.R. � 1614.405.
ISSUE PRESENTED
The issue presented is whether the agency properly determined that it did
not breach the settlement agreement entered into with the complainant.
BACKGROUND
Complainant filed a formal complaint on June 27, 1998, alleging
discrimination on the bases of sex (female) and reprisal (prior EEO
activity) when she was subjected to sexual harassment and acts of
reprisal. Complainant and the agency negotiated a Settlement Agreement
(SA) resolving the complaint on October 6, 1998.
The SA provided, in pertinent part, that the agency would:
(1) provide [complainant] with a Special Achievement or Quality Step
Increase (QSI) Award, as appropriate, based on her performance for the
rating period April 1, 1998 through March 30, 1999 if she continues to
maintain or exceed her present performance throughout the remainder of
the rating period.
(2) create a written policy on the method by which employees are
assigned for details. The written policy will be agreed upon through
Union/Management partnership and will include a fair and equitable system
of assignment. Said policy will not abrogate Management's right under
Article 28(A)(1) and (2) of the INS/NINSC Agreement.
By letter to the agency, complainant alleged that the agency was in
breach of the SA, and requested the reinstatement of her complaint from
the point at which processing had ceased. Complainant claimed that the
agency failed to award the �Quality Step Increase which [she] requested,�
and which she claimed was to have been awarded to her at the close of
1998 per a �verbal agreement� with agency officials. She also alleged
that the agency had failed to create a written policy concerning the
assignment of details to employees, and that the agency had generally
failed to comply with the SA. She alluded to a meeting with Management
officials in which she more specifically discussed her concerns.
In its FAD, the agency concluded that the SA had not been breached in
the matter of the QSI because verbal agreements made in the course of a
SA are only binding if reached before a Commission Administrative Judge
(AJ) and entered onto the hearing transcript. Because this was not the
case, and because no language appeared in the SA specifying when the
complainant was to receive the QSI, the agency stated that the SA had
not been breached. It also concluded that the SA had not been breached
�simply because the INS has not yet created a written policy regarding the
assignment of details to employees.� It noted that the SA did not specify
a time frame in which the agency was obligated to develop the policy.
ANALYSIS AND FINDINGS
EEOC Regulation 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. 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. Id.
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). 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 (August 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. U.S. Postal Service, EEOC Request
No. 05931097 (April 29, 1994) (citing Hyon O v. U.S. 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, 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)).
After a review of the record and the SA contained therein, we agree
with the agency's conclusion that the SA had not been breached. EEOC
Regulation 29 C.F.R. � 1614.603 specifies that any settlement reached
between the parties shall be in writing and signed by both parties.
In this case, the written agreement between the agency and complainant
does not contain the requirement that complainant was to receive the
QSI at the end of 1998, and a verbal agreement would not supercede the
written SA.
Additionally, the SA did not provide a time frame in which the agency
was to create the written policy on employees' assignments to details.
The Commission previously has held that when a settlement agreement does
not provide a time frame for the performance of the provisions therein,
performance nonetheless is required within a reasonable amount of time.
See Gomez v. Department of the Treasury, EEOC Request No. 05930921
(February 10, 1994). The determination of what amount of time is
�reasonable� is made on a case by case basis. In this case, we cannot
say that at the time the FAD was written, June 25, 1999, an unreasonable
amount of time had passed since the signing of the SA, given that the
agency would have had to negotiate the policy through its Union/Management
partnership mechanism. In the absence of evidence that the agency did
not intend to perform this provision, we cannot say that the agency has
breached this aspect of the SA. Therefore, we conclude that the SA has
not been breached.
CONCLUSION
Accordingly, the decision of the agency was proper and is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0800)
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 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 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
__09-26-00________________
Date
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 29 C.F.R. Part 1614 in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.