01983832
11-30-1999
Sylvia Redschlag, Complainant, v. Louis Caldera, Secretary, Department of the Army, Agency.
Sylvia Redschlag, )
Complainant, )
)
v. ) Appeal No. 01983832
)
Louis Caldera, )
Secretary, )
Department of the Army, )
Agency. )
_______________________________ )
DECISION
Complainant filed the instant appeal by letter dated March 12, 1998 in
which she alleged that the agency failed to comply with the September
12, 1996 settlement agreement.<1> The instant appeal concerns breach of
settlement allegations raised by complainant with the agency in a letter
dated January 17, 1998. There is no indication that the agency ever
responded to the breach of settlement allegations raised by complainant
in her letter of January 17, 1998. In the January 17, 1998 letter,
complainant alleged that the agency breached provisions 3(a), 3(b), and
3(c) of the September 12, 1996 settlement agreement. Because the agency
did not respond to the settlement breach allegations raised in the January
17, 1998 letter, and because more than 35 days passed before complainant
filed the instant appeal, the Commission finds that the instant appeal
is properly before the Commission. 64 Fed. Reg 37,644, 37,660 (1999)
(to be codified as and hereinafter cited as 29 C.F.R. �1614.504(b)).
The instant appeal is limited to the allegations raised in the January
17, 1998 letter which concern provisions 3(a), 3(b), and 3(c) of the
September 12, 1996 settlement agreement.
The September 12, 1996 settlement agreement provided (in part):
The Army agrees to:
Cancel [complainant's] seven day suspension by 26 September 1996.
Purge all adverse actions from [complainant's] personnel file, to include:
Midterm and Final Performance Appraisals for 1995;
Midterm Performance Evaluation from May 1996;
General Counseling Statements; and
Charge of 1.5 hours AWOL.
[Complainant's] within grade increase shall be paid retroactively to
the date first due.
In the event that [complainant's] Performance Appraisals cannot be purged
from her OPF [official personnel file], those periods shall be reflected
as non-rated periods.
Revise [complainant's] Performance Standards issued on December 13,
1995, to comply with her job description.
In the January 17, 1998 letter complainant alleged that the agency
breached provisions 3(a) (cancel suspension) and 3(b) (the portion
regarding the purging of all adverse actions) as shown by the "submissions
the Agency proffered in connection with the Complainant's Appeal to
the MSPB [Merit Systems Protection Board] on the removal action . . ."
Complainant argued in the January 17, 1998 letter that on December 18,
1997 she received documents from the agency relative to the MSPB appeal
(regarding the removal action) which showed that,
the Agency is again relying on the same adverse personnel actions
as supporting documents in the removal action, documents which the
Agency was to expunge from the personnel records in accordance with the
[settlement agreement]. Complainant also recently learned . . . that the
Agency also submitted and relied on these same adverse actions which were
supposed to be expunged, and submitted them as supporting documentation
against the complainant, in another proceeding in July 1997.
Regarding provision 3(c) of the settlement agreement, complainant alleged
in the January 17, 1998 letter:
The Agency failed to revise the Complainant's 1996 Performance Standards
to comply with her job description. Agency responding management official
[Person A,] Complainant's Senior Rater, stated under oath . . . on 22
September 1997 in the formal OCI conference on the pending companion
complaint of discrimination . . . in response to questioning from
the investigator, in pertinent part: "So why didn't she [complainant]
[original brackets omitted] get a rating in �96?["] [Person A] stated:
"She [complainant] didn't have a performance plan because it was basically
thrown out."
The regulation set forth at 64 Fed. Reg 37,644, 37,660 (1999) (to be
codified as and hereinafter cited as 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. If the complainant believes
that the agency has failed to comply with the terms of a settlement
agreement, then the complainant shall notify the EEO Director of the
alleged noncompliance "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.
Settlement agreements are contracts between the complainant and the agency
and 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
(Aug. 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. United
States Postal Service, EEOC Request No. 05931097 (Apr. 29, 1994) (citing
Hyon v. United States Postal Service, EEOC Request No. 05910787 (Dec. 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)).
The September 12, 1996 settlement agreement was the subject of a prior
Commission decision in Redschlag v. Department of the Army, EEOC Appeal
No. 01972651 (Jan. 5, 1998). In EEOC Appeal No. 01972651 the Commission
found:
With respect to provision 3b, [complainant] alleges that the agency
has breached the requirement that it purge adverse actions from her
OPF. In a memorandum dated January 31, 1997, the Director of Civilian
Personnel stated that [complainant's] personnel file had been purged
of "all documents in paragraph 3b of the agreement." The record also
contains a memorandum dated January 30, 1997, by a Personnel Actions
Clerk, stating that [complainant's] suspension of September 16, 1995,
was canceled and documentation regarding the suspension was removed from
[complainant's] OPF. According to [complainant], her midterm performance
appraisal for 1995, remains attached to her revised annual performance
appraisal for 1995; however, [complainant] presents no evidence of such,
other than her bare assertion. Therefore, we find that [complainant's]
OPF has been purged of adverse actions, as required by provision
3b. [Complainant] also states that the agency has not provided her with
written notification that all adverse actions have been purged from her
OPF. We note that the settlement agreement does not require that the
agency provide [complainant] with written notification that adverse
actions have been removed from her OPF, and therefore, the agency's
failure to do so did not constitute breach.
With respect to provision 3c, [complainant] alleges that the agency
placed the burden on her of revising her performance standards. The
record indicates that the action required by provision 3c was completed by
November 21, 1996; it does not appear that [complainant's] participation
in completing the action was impermissible under the terms of the
settlement agreement.
With respect to the above provisions of the settlement agreement
that required that the agency revise [complainant's] performance
standards and purge adverse actions from [complainant's] OPF, we note
that [complainant] also contends that the required actions were not
completed within the time frame provided by the agreement. Specifically,
[complainant] contends that the actions should have been completed before
the closing date in November 1996 of a particular vacancy announcement,
so that she could apply for that vacancy, as required by provision 4
of the settlement agreement. We note that the settlement agreement did
not provide specific time frames for the completion of the actions in
question, and under the circumstances, we find that the actions were
completed within a reasonable period of time. Therefore, the agency has
not breached the settlement agreement with respect to those actions.
Redschlag, EEOC Appeal No. 01972651.
The Commission finds that the Commission explicitly decided in EEOC
Appeal No. 01972651 that the agency has fully complied with: (1) the
portion of provision 3(b) of the settlement agreement requiring the
purging of adverse actions; and (2) provision 3(c) of the settlement
agreement. Complainant may be arguing that she has discovered new
evidence showing that the agency breached provisions 3(b) and 3(c) of
the settlement agreement. Complainant is apparently arguing that the
agency's prior decision which was at issue in EEOC Appeal No. 01972651
was incorrect because it relied on a "bare, unsworn representation."
The prior agency decision which was at issue in EEOC Appeal No. 01972651
is not at issue in this appeal.
Complainant had the right to request reconsideration of the Commission's
prior decision pursuant to the regulation set forth at 64 Fed. Reg 37,644,
37,659 (1999) (to be codified as 29 C.F.R. �1614.405(b)). Complainant was
informed by the Commission of such a right to request reconsideration in
the section entitled "Statement of Rights - On Appeal Reconsideration"
in EEOC Appeal No. 01972651. Id. Furthermore, although the Commission
initially docketed the instant matter as a request for reconsideration,
complainant informed the Commission by letter dated April 10, 1998
that the Commission "mistakenly" classified the instant appeal as a
request for reconsideration and that the instant appeal was a "new
complaint, requesting review for breach of settlement agreement . . ."
Therefore, the instant appeal is properly not treated as a request for
reconsideration.
Because the instant appeal is not a request for reconsideration,
the Commission finds that the Commission's decision in EEOC Appeal
No. 01972651 finding that the agency did not breach provisions 3(b)
(regarding the purging of adverse actions) and 3(c) of the September 12,
1996 settlement agreement is still valid and will not be disturbed under
the principle of res judicata. See Wright v. Department of the Army,
EEOC Request No. 05931054 (Feb. 17, 1994).
The Commission's decision in EEOC Appeal No. 01972651 also referenced
the agency's cancellation of the suspension at issue in provision 3(a).
Redschlag, EEOC Appeal No. 01972651. The Commission's decision in
EEOC Appeal No. 01972651 found that the January 30, 1997 memorandum
by a Personnel Actions Clerk was sufficient to show compliance with
provision 3(a). Id. The Commission found that the Personnel Actions
Clerk stated in the January 30, 1997 memorandum that the suspension at
issue in provision 3(a) was canceled.<2> Id. The Commission finds that
the issue of whether provision 3(a) has been breached was considered
and effectively decided in a prior Commission decision, EEOC Appeal
No. 01972651, concerning both of the instant parties. Therefore, we
find that complainant is collaterally estopped from claiming that the
agency did not comply with provision 3(a) of the settlement agreement.
Complainant has failed to show that the agency breached provisions 3(a),
3(b), or 3(c) of the September 12, 1996 settlement agreement.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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). 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).
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. 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 (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:
November 30, 1999
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 of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_____________________ _________________________ Date
Equal Employment Assistant1On 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.
2Complainant admitted in her January 17, 1998 letter that the Personnel
Actions Clerk stated that complainant's suspension had been canceled
and documentation regarding the suspension had been removed from
complainant's OPF.