01986057
11-30-1999
Terrie L. Hillig, )
Complainant, )
)
v. ) Appeal No. 01986057
) Agency Nos. DFAS-DE-DENV-95-033
) DFAS-DE-DENV-96-009
William S. Cohen, )
Secretary, )
Department of Defense, )
(Defense Finance & Accounting )
Service), )
Agency. )
________________________ _______)
DECISION
Complainant filed the instant appeal from the agency's July 15, 1998
decision finding that the agency did not breach the settlement agreement
entered into by the parties on December 10, 1996. <1>
The settlement agreement provided in relevant part:
In exchange for the promises of the complainant . . . the agency agrees
that:
No reprisal action will be taken against the complainant.
. . . .
The agency will upgrade complainant's appraisal rating for the period May
1, 1994, to April 30, 1995, from Fully Successful to Highly Successful and
will expunge any negative memoranda regarding complainant's performance
or conduct found in the agency's supervisory records or in complainant's
official personnel folder (OPF).
[Person A] will sign a letter stating that complainant worked under
[Person A's] supervision, that [Person A] rated [complainant's]
performance for the period May 1, 1994, to April 30,. 1995, and that
complainant performed her personnel clerk duties in a Highly Successful
manner and showed a commendable willingness to learn.
. . . .
The agency will retroactively promote complainant to the grade of GS-6 in
her current position (GS-0318-05) in the Directorate of Support Services,
Systems Management and Distribution Branch, by accretion of duties to
justify the GS-6 level. The effective date of this promotion will be
July 2, 1995. This shall include retroactive backpay and benefits,
subject to withholdings as required by law.
By letter dated June 11, 1998 complainant alleged that the agency
breached provisions 4(a), 4(d), 4(e), and 4(g), when Person A provided
a bad reference for complainant for a job complainant applied for in
a different agency and when Person B retained negative information on
complainant in a "separate file". In the agency determination the agency
found that it did not breach the settlement agreement. The agency also
noted that complainant had initiated precomplaint counseling alleging
reprisal actions taken by the agency which prevented complainant from
being selected for the position at a different agency.
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 appellant 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)).
As an initial matter , we reject the agency's contention on appeal that
complainant filed a civil action on the settlement breach allegation.
Although the actions at issue in the settlement breach are at issue
in the civil action, the civil action specifically excludes any claim
that the civil action constitutes a settlement breach claim. The civil
action only concerns the discriminatory aspects of such incidents.
Any decision by the district court concerning those incidents, however,
may result in complainant being collaterally estopped from claiming
certain facts or making certain arguments in a breach of settlement claim.
64 Fed. Reg at 37,660 (to be codified as and hereinafter cited as 29
C.F.R. �1614.504(c)) provides that allegations that subsequent acts
of discrimination violate a settlement agreement shall be processed as
separate complaints under 64 Fed. Reg. at 37656 (to be codified as and
hereinafter cited as �1614.106) rather than as breach allegations.
Complainant's allegation that the agreement was breached by an act of
reprisal is an allegation that a subsequent act of discrimination violated
the settlement agreement. Therefore, we find that the agency did not
breach provision 4(a) of the agreement. Such an allegation should be
processed as a separate complaint under �1614.106 rather than as a breach
allegation. Complainant has apparently already filed such a complaint.
The Commission finds that the agency has supplied sufficient evidence
to show that it has complied with provisions 4(d), 4(e), and 4(g)
of the agreement. The record shows that: (1) complainant's appraisal
was properly upgraded; (2) complainant's OPF was expunged of the proper
material; (3) the letter required in provision 4(e) was signed and issued;
and (4) complainant was retroactively promoted.
Although complainant claims that Person B retained negative documents
on complainant's conduct or performance in violation of provision 4(d)
of the agreement, the Commission finds that: (1) there is no persuasive
evidence showing that Person B was complainant's supervisor at the time
the agreement was entered; (2) the record indicates that Person B was not
employed by the agency at the time of the agreement; (3) provision 4(d)
did not apply to any documents maintained outside of agency's supervisory
records or outside of complainant's official personnel folder (OPF);
and (4) any records maintained by Person B were not part of the agency's
supervisory records and were not part of complainant's OPF.
Complainant has not claimed that she was not provided with the
correct backpay and benefits as required in provision 4(e). There is
no requirement in the agreement that complainant be provided with
any particular job reference. Furthermore, we find that there is
insufficient evidence to show that the agency has acted in bad faith
in implementing the settlement agreement. Therefore, the Commission
finds that complainant has failed to show that the agency breached the
settlement agreement. Because of our disposition there is no need to
consider the timeliness of complainant's breach allegations.
The agency's determination finding that the agency did not breach the
settlement agreement is AFFIRMED.
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:
__________________________
________________________________
1On 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.