Suzanne Smith, Appellant, v.

Equal Employment Opportunity CommissionOct 13, 1999
01991044 (E.E.O.C. Oct. 13, 1999)

01991044

10-13-1999

Suzanne Smith, Appellant, v.


Suzanne Smith v. Department of Health and Human Services

01991044

October 13, 1999

Suzanne Smith, )

Appellant, )

)

v. ) Appeal No. 01991044

) Agency No. DEC ISSUE 9298

Donna E. Shalala, )

Secretary, )

Department of Health and )

Human Services, )

Agency. )

______________________________)

DECISION

On September 30, 1998, the appellant filed a timely appeal with this

Commission from a final decision (FAD) by the agency dated September 2,

1998, finding that it was in compliance with the terms of the April

24, 1998 settlement agreement into which the parties entered. See 29

C.F.R. ��1614.402, .504(b); EEOC Order No. 960, as amended.

The issue on appeal is whether the agency breached the settlement

agreement.

At least nine informal complaints filed by the appellant were resolved

by a Memorandum of Agreement (MOA) entered into on April 24, 1998.

The MOA provided, in relevant part, that:

...(2) The agency will provide a "neutral" reference for complainant to

prospective employers who contact the agency for reference information:

Dates of Complainant's employment with the agency (September 25, 1988,

through April 15, 1998).

Titles and grades of positions held by the Complainant while employed

by the agency (Microbiologist, GS-403-12, from September 25, 1988,

through December 11, 1990: and Microbiologist GS-403-13, from December

12, 1990, through April 15, 1998).

Last performance rating of record (Fully Successful).

The fact that Complainant voluntarily resigned from employment with

the agency effective April 15, 1998, for personal reasons.

No other employment data will be disclosed.

Previous to the MOA, the appellant had filed an appeal of her removal

to the Merit Systems Protection Board (MSPB). On April 15, 1998,

the parties entered into a settlement agreement (SA) to resolve their

dispute which provided in relevant part, that:

4. The agency will remove appellant's last rating of record from her

Official Personnel Folder (OPF). In the absence of a current rating

of record, the parties intend that the appellant's performance will be

presumed to have been rated "Satisfactory."

By letter to the agency dated June 23, 1998, the appellant requested

that either the agency provide a written 1995/1996 performance evaluation

with a rating of "Fully Successful" or that her prior EEO complaints be

reinstated. An agency memorandum dated July 14, 1998, by the Division

of Ethics and Labor Management Relations stated that the agency removed

the complainant's 1995/1996 performance evaluation from her OPF in

compliance with the April 16, 1998, MSPB SA. The agency further stated

that the April 24, 1998, MOA required it to provide prospective employers

only the following information: ...C) Last performance rating of record

(Fully Successful); therefore, the latest performance evaluation in the

complainant's OPF was for the 1994 period.

Subsequently, by letter dated August 29, 1998, the appellant alleged that

the agency's failure to provide her with both 1994/1995 and 1995/1996

written performance evaluations with a rating of "Fully Successful" was

a breach of the MOA. The appellant reiterated her request to have her

previous EEO complaints reinstated.

In its September 2, 1998 FAD, the agency concluded that it was in

compliance with the MOA and denied the complainant�s request to have her

prior EEO complaints reinstated. Specifically, the agency asserted that

it had not agreed to provide the complainant with a written performance

evaluation for the 1995/1996 rating period nor had the complainant so

requested.

Thereafter, the appellant timely filed the instant appeal. In response,

the agency asserts that its final decision to deny the appellant's

request for a written 1995/1996 performance evaluation and to reinstate

her prior EEO complaints is fully supported by the record.

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.

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 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 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, the appellant alleged that the agency breached the

MOA by not providing her with written 1994/1995 and 1995/1996 performance

evaluations with "Fully Successful" ratings. The appellant asserts that

she does not consider the 1993/1994 performance evaluation to meet the

MOA term "Last performance rating of record (Fully Successful)."

We find that the record does not support the appellant's allegation

of breach. The MOA clearly does not require a written performance

evaluation for the 1995/1996 rating period. Further, we note that the

MSPB SA required the agency to remove the 1995/1996 performance rating

from the appellant's OPF. There is no evidence that either agreement

required the agency to write a new 1995/1996 performance evaluation.

Therefore, we find that the agency did not breach the MOA.

To the extent that the appellant is alleging that she entered into the

MOA under a mistake of fact, she must fail. Where only one party to

the contract makes a mistake, and the mistake was not known to the other

party, then the contract is not avoidable unless the other party induced

the mistake, except when: (1) the mistake is of so great a consequence

as to make enforcement of the contract unconscionable; (2) the mistake

relates to a material feature of the contract, and is made regardless

of the exercise of ordinary care; and (3) the recision of the contract

does not result in prejudice to the other party other than the loss of

his bargain. Shuman v. Navy, EEOC Request No. 05900744 (July 20, 1990).

The preponderant evidence here fails to support the appellant's contention

that the agency knew that she expected it to write a new 1995/1996

performance evaluation. Neither the plain language of the MOA requires

such an action by the agency, nor does the appellant point to someone

at the agency who knew or should have known that it was her intention

that the agency write a new 1995/1996 performance evaluation. Moreover,

the exercise of ordinary care requires that if the appellant expected a

new 1995/1996 performance evaluation be written, she should have reduced

that expectation to writing as part of the MOA. Therefore, we find that

the appellant has not shown that the agency induced the mistake, nor has

she shown that she meets the exception to the one party mistake rule.

Accordingly, the agency's final decision is hereby AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0795)

The Commission may, in its discretion, reconsider the decision in this

case if the appellant or the agency submits a written request containing

arguments or evidence which tend to establish that:

1. New and material evidence is available that was not readily available

when the previous decision was issued; or

2. The previous decision involved an erroneous interpretation of law,

regulation or material fact, or misapplication of established policy; or

3. The decision is of such exceptional nature as to have substantial

precedential implications.

Requests to reconsider, with supporting arguments or evidence, MUST

BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this

decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive

a timely request to reconsider filed by another party. Any argument in

opposition to the request to reconsider or cross request to reconsider

MUST be submitted to the Commission and to the requesting party

WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request

to reconsider. See 29 C.F.R. �1614.407. All requests and arguments

must bear proof of postmark and 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 filed on the date it is received

by the Commission.

Failure to file within the time period will result in dismissal of your

request for reconsideration as untimely. If extenuating circumstances

have prevented the timely filing of a request for reconsideration,

a written statement setting forth the circumstances which caused the

delay and 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).

RIGHT TO FILE A CIVIL ACTION (S0993)

It is the position of the Commission that 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.

You should be aware, however, that courts in some jurisdictions have

interpreted the Civil Rights Act of 1991 in a manner suggesting that

a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the

date that you receive this decision. To ensure that your civil action

is considered timely, you are advised to file it WITHIN THIRTY (30)

CALENDAR DAYS from the date that you receive this decision or to consult

an attorney concerning the applicable time period in the jurisdiction

in which your action would be filed. 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 (Z1092)

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:

Oct. 13, 1999

____________________________

DATE Carlton M. Hadden, Acting Director

Office of Federal Operations