Terrie L. Hillig, Complainant,v.William S. Cohen, Secretary, Department of Defense, (Defense Finance & Accounting Service), Agency.

Equal Employment Opportunity CommissionNov 30, 1999
01986057 (E.E.O.C. Nov. 30, 1999)

01986057

11-30-1999

Terrie L. Hillig, Complainant, v. William S. Cohen, Secretary, Department of Defense, (Defense Finance & Accounting Service), Agency.


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.