0120092285
09-29-2009
Wanda M. Smith, Complainant, v. Timothy F. Geithner, Secretary, Department of the Treasury, Agency.
Wanda M. Smith,
Complainant,
v.
Timothy F. Geithner,
Secretary,
Department of the Treasury,
Agency.
Appeal No. 0120092285
Agency Nos. OCC-08-0502 & OCC-08-0703
DECISION
Complainant filed a timely appeal with this Commission from a final
agency decision dated April 8, 2009, finding that it was in compliance
with the terms of the October 8, 2008 settlement agreement into which the
parties entered. See 29 C.F.R. �� 1614.402; 1614.405; & 1614.504(b).
The settlement agreement provided the following, in pertinent part.
1. The Agency agrees:
(A) To take no further action concerning the proposed removal letter
dated
August 18, 2008. . . .
(C) To pay the Complainant the sum of $62,167.00 . . .
(E) To provide up to six hours of outplacement counseling with
the Agency's outplacement contractor, CMI. This entitlement
commences on the date all parties to the Settlement Agreement
have signed it and will expire three months after that date.
The Complainant may obtain this service by contacting [the
agency's Human Resources Representative]. . . .
(F) To provide neutral employment information to the
Complainant's prospective employers regarding her employment with
the Agency, for a period not to exceed four years. [The current
Washington, DC Human Resources Manager (HRM1)] (or her successor),
will be the agency point of contact for providing the employment
information. The information provided will be restricted to the
dates of employment, position held, performance rating of record,
salary, and that the Complainant resigned.
(G) To continue the Complainant's health benefits coverage for a three
month period following her resignation, as follows:
1. The Complainant's health benefits coverage will be extended for 31
days following October 11, 2008 (the end of the pay period following
the effective date of her resignation), at no cost to the Complainant,
to allow the Complainant time to elect to convert to a non-group contract,
at rates set by the insurance carrier, or to elect to temporarily continue
her Federal Employee Health Benefits (FEHB) coverage.
2. The Complainant may temporarily continue her enrollment in the
current health plan for two months after expiration of the 31 days of
initial continued coverage, under the Temporary Continuation of Coverage
(TCC) program. Under the TCC program, the Complainant's coverage is the
same as an active employee. The Complainant may select any FEHB plan
in which to continue her coverage. The [agency] will pay the full TCC
premium plus the 2% administration charge for this two month period.
The Agency will provide to the Complainant a copy of SF-2809, Employee
Health Benefits Registration Form, within five days of the effective date
of her resignation. The Complainant must complete the form and return
it to [a specific agency representative] at the address below within
15 days of the effective date of her resignation. Upon receipt of her
enrollment form, it will be forwarded to the National Finance Center
(NFC) for processing. NFC will send the Complainant an enrollment
acknowledgement letter and TCC payment coupons. The Complainant must
send the two payment coupons to [the agency.]
By letter to the agency dated February 10, 2009, complainant alleged that
the agency was in breach of the settlement agreement, and requested that
the agency reinstate the underlying complaint for further processing.
Complainant did not specify how the agency breached the February 2009
agreement and, subsequently, the agency requested clarification. In a
March 9 letter, complainant alleged that the agency breached (A) and
(F), stating that prospective employers implied that the agency provided
unfavorable feedback about her job performance, and (E) because she
believed that CMI was a job referral service but it provided assistance
with resume writing only. Further, as to (G), complainant stated that
she received a past due monthly insurance premium notice and was unable
to continue physical therapy or receive dental services, and received
her Employee Health Benefits Registration form about a month late so
she was unable to register for long-term care insurance.
In its April 8, 2009 final decision, the agency concluded that it was
in compliance with the settlement agreement. Specifically, the agency
stated that the Human Resources Manager designated in the agreement,
HRM1, stated that she did not receive nor does she know of an agency
representative who received calls from prospective employers regarding
complainant. Further, the agency stated that the settlement agreement
does not identify CMI as a job referral service and it did not make
oral promises to such effect. Regarding a past due insurance premium,
the agency stated that, in an email dated December 23, 2008, an agency
Benefits Representative informed complainant that she had to submit
the payment coupons she received for her health insurance to the agency
for payment. The agency added that complainant did not do so, did not
respond to the payment invoice and her insurance was cancelled on March
26, 2009 due to nonpayment. The agency noted that NFC terminated the
insurance retroactive to November 11, 2008. Lastly, the agency stated
that the agreement does not provide for dental benefits but it provided
complainant dental benefits retroactively and informed her that she
could resubmit dental claims. The agency submitted emails and invoices
to support its contentions.
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 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, we agree with the agency and find that, based on
"the plain meaning rule," complainant failed to establish that the
agency breached the October 8 agreement. Specifically, complainant
did not show or state for certain that there was unfavorable reference
feedback; the agreement stated that CMI would provide complainant
"outplacement counseling" rather than job referrals as complainant
stated; and complainant did not act as she agreed regarding submitting
health insurance payment coupons to the agency for payment. Hence,
her health insurance was only extended to November 11, 2008. Further,
we note that, if we found breach, to grant complainant's request of
complaint reinstatement, status quo ante would apply. The state of
affairs prior to the settlement agreement would have to return and
complainant would have to return any monies or benefits received as
a result of the agreement (e.g. $62,167.00). Based on the above, we
AFFIRM the final agency decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 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 77960,
Washington, DC 20013. 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 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 (S0408)
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 (Z1008)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
September 29, 2009
__________________
Date
2
0120092285
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
5
0120092285