0120093023
10-28-2009
Sheree Turnage, Complainant, v. Robert M. Gates, Secretary, Department of Defense, Agency.
Sheree Turnage,
Complainant,
v.
Robert M. Gates,
Secretary,
Department of Defense,
Agency.
Appeal No. 0120093023
Agency No. 06AFIS046
DECISION
Complainant filed an appeal with this Commission from the agency's
dismissal of her complaint dated June 10, 2009. The agency noted that
the matter was being closed pursuant to the terms of the April 7, 2009
settlement agreement into which the parties entered. See 29 C.F.R. �
1614.402; 29 C.F.R. � 1614.504(b); and 29 C.F.R. � 1614.405.
The settlement agreement provided, in pertinent part, that the agency
agreed to:
(1) Within thirty (30) days of the effective date of this Agreement,
rescind and remove from [complainant's] Official Personnel Files as well
as 'unofficial" personal files...
(2) Immediately voluntarily transfer complainant to the Facilities
Department of DMA Alexandria;
(3) Provide complainant an appraisal of at least "meets expectations"
in each job objective for her current job;
(4) Reinstate forty (40) hours annual leave within 30 days of the
effective date of this Agreement;
(5) This agreement becomes effective upon the date of the last
signature. Either party acknowledges that they have the right to withdraw
from this agreement by 5:00 p.m., Monday, April 13, 2009.
On April 8, 2009, the EEOC Administrative Judge (AJ) issued his order
dismissing the matter with prejudice based on the settlement agreement
dated April 7, 2009. By e-mail dated April 13, 2009 at 4:49 p.m.,
complainant informed the agency that she was withdrawing from the
settlement agreement. On June 10, 2009, the agency dismissed the complaint
from processing based on the settlement agreement. Based on the agency's
dismissal, complainant filed an appeal with the Commission arguing that
she had withdrawn from the settlement agreement prior to the deadline
as evidenced by a copy of her e-mail dated April 13, 2009 at 4:49 p.m.
Therefore, her complaint should be processed.
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 that complainant timely contacted the
agency to withdraw from the settlement agreement within the time frame
stated within the agreement. As such, we find that the agency and the
AJ prematurely dismissed the complaint from processing. We note that the
settlement agreement required the agency to take various actions such as
restoring leave to complainant and to reassign complainant. The record
does not indicate the extent the agency has implemented the provisions
with the settlement agreement. Since complainant timely withdrew from
the settlement agreement, the agency shall rescind any action taken in
compliance with the settlement agreement and complainant will return to
the status quo. The matter shall also be returned to point where the
complaint process ceased. As such, the Commission remands the matter
back to the agency to forward the complaint back to the AJ.
CONCLUSION
Therefore, we REVERSE the agency's decision dismissing the complaint
at hand and REMAND the matter for further processing in accordance with
the ORDER below.
ORDER
The agency is ordered to process the remanded complaint at the point where
processing ceased. The agency shall insure that complainant returns any
benefits received. The agency will within fifteen (15) calendar days
shall issue complainant an acknowledgement letter informing complainant
of the processing of her complaint. Within thirty (30) calendar days,
the agency shall forward the matter to the EEOC Administrative Judge.
A copy of the agency's letter of acknowledgment to complainant and a
copy of the notice that transmits the file to the EEOC AJ must be sent
to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K1208)
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 77960, Washington,
DC 20013. 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 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) (1994 & Supp. IV 1999).
If the complainant files a civil action, the administrative processing of
the complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 77960,
Washington, DC 20013. 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).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (R0408)
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 (Z1008)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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
October 28, 2009
__________________
Date
2
0120093023
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
5
0120093023