01a00668
03-31-2000
Teresa A. Gonser, Complainant, v. William S. Cohen, Secretary, Department of Defense, Agency.
Teresa A. Gonser, )
Complainant, )
)
v. ) Appeal No. 01A00668
) Agency No. JQ-99-029/JQ-98-050
William S. Cohen, )
Secretary, )
Department of Defense, )
Agency. )
____________________________________)
DECISION
On October 18, 1999, complainant filed a timely appeal with this
Commission from a final decision (FAD) by the agency dated December 22,
1999,<1> finding that it was in compliance with the terms of the May 20,
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:
(1) the Agency agrees to meet in good faith with the Complainant within
30 days from the date of this Agreement in an effort to resolve the
following issues: restoring leave that the Complainant used as a result
of the incident that took place on November 3, 1998. . .
By letter to the agency dated September 20, 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 failed to restore 61.5 hours of annual leave and
53 hours of sick leave to her leave accrual accounts. Complainant also
sought the restoration of 8 hours for the time it allegedly took her to
review the leave information requested by the agency.
In its December 22, 1999 FAD, the agency concluded that the evidence
obtained by the agency showed that an agency official met with complainant
and her representative on June 2, 1999, and again on June 8, 1999, well
within the 30 days from the date of the agreement to resolve the leave
issue. Throughout the summer of 1999, efforts were made to determine the
amount of annual and sick leave complainant had used and whether there was
sufficient medical documentation to support complainant's claim that she
had to use annual and sick leave on 27 separate days between November
4, 1998, and May 14, 1999, due to stress. The evidence showed that
complainant was requested to provide medical documentation to support
her leave usage, but as of September 30, 1999, she had not done so.
The evidence this adduced showed that, in accordance with the plain
terms of the Agreement, efforts were made to resolve the leave issue.
The agency argued that the Resolution Agreement did not say that the
agency would restore the contested leave. Because the Agreement did not
explicitly express this intent, the agency concluded that complainant
failed to show how the Resolution Agreement was breached.
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 shows that the agency made efforts
to resolve the leave issue with complainant in accordance with the
Resolution Agreement. As stated by the agency, the Agreement did not say
that the agency would restore the contested leave, only that it would
make efforts to resolve the leave issue. Because the Agreement did not
explicitly express this intent, we find that complainant failed to show
how the Resolution Agreement was breached. Accordingly, we affirm the
agency 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:
March 31, 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 complainant appealed the agency's September 30, 1999,
preliminary letter informing her that because of her failure to provide
medical documentation to support her leave usage, that her request for
back pay could not be approved in accordance with the May 20, 1999,
settlement agreement entered into by both parties. Unable to resolve
the issue, agency issued its final decision approximately two months
later on December 22, 1999, finding no breach.
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.