Rosana S. Mora, Complainant,v.Janet Reno, Attorney General, Department of Justice, Immigration and Naturalization Service, Agency.

Equal Employment Opportunity CommissionSep 26, 2000
01995945 (E.E.O.C. Sep. 26, 2000)

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.