Wanda M. Smith, Complainant,v.Timothy F. Geithner, Secretary, Department of the Treasury, Agency.

Equal Employment Opportunity CommissionSep 29, 2009
0120092285 (E.E.O.C. Sep. 29, 2009)

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