01A34350_r
02-18-2004
Susan Fitzgerald, Complainant, v. Thomas J. Ridge, Secretary, Department of Homeland Security, Agency.
Susan Fitzgerald v. Department of Homeland Security
01A34350
February 18, 2004
.
Susan Fitzgerald,
Complainant,
v.
Thomas J. Ridge,
Secretary,
Department of Homeland Security,
Agency.
Appeal No. 01A34350
Agency Nos. 98-3132B; 98-3738B
DECISION
Complainant appeals to the Commission from the agency's June 20, 2003
decision finding no breach of the settlement agreement. On March 2,
2000, the parties resolved complainant's complaints by entering into a
settlement agreement which provided, in pertinent part, that complainant
would receive the following:
[A]. PRIORITY CONSIDERATION: The Agency agrees to one time priority
consideration for the next available position for which the Complainant
qualifies and for which she applies. This means the complainant's
application will be referred to the appropriate selecting official
for advance consideration before other candidates. This priority
consideration in no way requires her selection; it does however, insure
the selecting official gives full consideration to her application.
[B]. LUMP SUM & COMPENSATORY DAMAGES: Provide the Complainant with a lump
sum payment of $5,000.00 (less taxes), which represents and is in lieu
of any and all claims to back pay, attorney's fees, costs or damages of
any kind. Payment to be made within fifteen (15) calendar days of the
date of signing of this settlement agreement.
[C]. ATTORNEY'S FEES: No attorney's fees are provided. The Complainant
was not represented by counsel.
[D] REPRISAL: [The agency] acknowledges its obligation under Title VII
of the Civil Rights Act of 1964, as amended, not to take any reprisals
against the complainant for filing a discrimination complaint concerning
the matters described in the first paragraph of this agreement. Further,
[the agency] affirms its commitment and obligation to observe equity
throughout the vacancy recruitment and selection process.
By letter to the agency dated November 21, 2002, complainant alleged that
the agency was in breach of the settlement agreement. Specifically,
complainant alleged that the agency breached provision D of the
settlement agreement. Complainant alleges that: "A, B, & C, have been
fulfilled. Part D. Reprisal and the agency's commitment and obligation
to observe equity throughout the vacancy recruitment and selection process
is the matter that has been grossly violated, breaching this agreement."
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).
EEOC Regulation 29 C.F.R. � 1614.504(c) provides that allegations that
subsequent acts of discrimination violate the settlement agreement shall
be processed as separate complaints under � 1614.106. Complainant's
claims of violations regarding non-selections constitute claims of
subsequent acts of discrimination. Furthermore, the agency asserts that
complainant has raised such claims of discrimination in agency number
03-2214T. Therefore, we find that complainant has failed to show that
the agency breached the settlement agreement.
The agency's decision finding no breach of the settlement agreement
is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0900)
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
February 18, 2004
__________________
Date