01a00616
04-18-2000
Sandra W. Payne, Complainant, v. Lawrence H. Summers, Secretary, Department of the Treasury, Agency.
Sandra W. Payne, )
Complainant, )
)
v. ) Appeal No. 01A00616
) Agency No. TD-98-1060
Lawrence H. Summers, ) TD-98-1229
Secretary, ) TD-98-1295
Department of the Treasury, )
Agency. )
____________________________________)
DECISION
On October 7, 1999, complainant filed a timely appeal with this
Commission from a final decision (FAD) by the agency dated December 23,
1999,<1> finding that it was in compliance with the terms of the May 5,
1999 settlement agreement into which the parties entered.<2> See 64
Fed. Reg. 37,644, 37,659, 37,660 (1999)(to be codified and hereinafter
referred to as EEOC Regulation 29 C.F.R. � 1614.402); 29 C.F.R. �
1614.504(b); and 64 Fed. Reg. 37,644, 37,659 (1999)(to be codified at
29 C.F.R. � 1614.405).
The settlement agreement provided, in pertinent part, that:
The agency agrees that all work priorities will be set by deadline,
and shared;
(6) The agency agrees to pay the Complainant a one time special act
award in the amount of $1000. Other than this one time payment, the
Complainant will not receive any back pay, attorney's fees, costs,
or any monies however designated;
(13) The agency acknowledges its obligation under applicable laws not to
retaliate against the Complainant for filing EEO complaints. The agency
acknowledges its obligation under applicable laws not to discriminate
against the Complainant including the issue of her having two (2) desks.
By letter to the agency dated April 19, 1999, complainant alleged that
the agency was in breach of the settlement agreement, and requested that
the agency specifically implement its terms. Specifically, complainant
alleged that the agency's policy is to assign the work of co-workers
who fall behind to those workers who are caught up with their work.
In light of this alleged fact, complainant asserts that the agency
failed to reassign her old-dated work to co-workers who are caught up
with their own work in order to share her work priorities in accordance
with Item 5 of the settlement agreement. Complainant also alleges that
she was not awarded her special act award within the time specified in
the settlement agreement and that she was not aware that such a large
amount was going to be withheld in taxes. Complainant also alleged that
the agency retaliated against her in breach of Item 13.
In its December 23, 1999 FAD, the agency concluded that it is in
compliance with the settlement agreement. With regard to Item 5, the
agency asserts that it has met with complainant to resolve the apparent
misunderstanding. Complainant was apparently referring to the sharing of
the workload, while management interpreted Item 5 to deal with the setting
or sharing of work priorities. The agency avers that the complainant's
statement that her unfinished, back-dated work should be �shared�
with her co-workers was a concern not addressed in the May 5, 1999,
settlement agreement. With regard to Item 6, the agency stated that not
only did it issue her special act award, it would also issue complainant
a check in the sum of $41.15 in interest for the delayed processing of
her award. Finally, the agency states that complainant's vague allegation
of a breach of Item 13 with regard to retaliation is not supported by
the record. Nevertheless, complainant's various allegations of reprisal
and/or further acts of alleged discrimination would be addressed and
processed under her most recent complaint of discrimination.
64 Fed. Reg. 37,644, 37,656 (1999)(to be codified and hereinafter
referred to as 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 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, the record supports the agency's conclusion that it
is in compliance with the settlement agreement. As stated by the agency,
the agreement did not say that complainant's unfinished, back-dated work
should be shared with her co-workers. Because the agreement did not
explicitly express this intent, we find that complainant failed to show
how Item 5 of the settlement agreement was breached. With regard to
Item 6, the record shows that complainant was issued a special act award
check for $1000 from which taxes were withdrawn. However, because the
agreement did not state whether the award was to be pre- or post-taxes,
we find that the complainant has failed to show how Item 6 was breached.
Finally, with regard to Item 13, involving alleged acts of reprisal, the
Commission has held that a complaint which alleges reprisal or further
discrimination in violation of a settlement agency's "no reprisal"
clause, is to be processed as a separate complaint and not as a breach
of settlement. See Bindal v. Department of Veterans Affairs, EEOC Request
No. 05900225 (August 9, 1990); 29 C.F.R. � 1614.504(c). The record shows
that complainant was properly advised, by letter dated August 27, 1999
(submitted by complainant) to bring her claims of reprisal in response
to this settlement agreement to the attention of an EEO Counselor.
In light of the above, we affirm the agency's final decision.
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).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S1199)
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:
April 18, 2000
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 after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
Equal Employment Assistant Date
1It appears that the complainant filed her appeal in response to an
agency letter dated August 27, 1999, advising her to seek EEO Counseling
with regard to the alleged breach of Item 13 of the settlement agreement
which pertained to future claims of retaliation.
2On 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.