0120102296
09-29-2010
Astrid Hopkins, Complainant, v. John M. McHugh, Secretary, Department of the Army, Agency.
Astrid Hopkins,
Complainant,
v.
John M. McHugh,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120102296
Agency No. ARCCAD09SEP04192
DECISION
Complainant filed a timely appeal with this Commission from a final determination (FD) by the Agency dated April 1, 2010, finding that it was in compliance with the terms of the February 18, 2010 settlement agreement into which the parties entered. See 29 C.F.R. � 1614.402; 29 C.F.R. � 1614.504(b); and 29 C.F.R. � 1614.405. For the reasons that follow, the Agency's FD is AFFIRMED.
ISSUE PRESENTED
Whether the Agency properly found that no breach of the settlement agreement occurred.
ANALYSIS AND FINDINGS
The record reflects that Complainant worked as a Sheet Metal Mechanic (Aircraft), WG-3806-08, for the Directorate of Manufacturing/Process Production in Corpus Christi, Texas. In September 2009 Complainant contacted an EEO Counselor, and, in November 2009, she filed a formal complaint. In February 2010, Complainant and the Agency entered into a settlement agreement that provided, in pertinent part:
(3) The AGENCY agrees to take the following action in regards to this settlement: By March 1, 2010, the paperwork will be initiated by CPAC to cancel the five day suspension which was issued to COMPLAINANT on November 3, 2009. Also, effective February 28, 2010, COMPLAINANT will be reassigned to the Directorate of Aircraft Production as a WG-3806-08 Sheet Metal Mechanic (Aircraft). Her reporting date will be March 1, 2010.
(4) COMPLAINANT'S signature on this agreement constitutes full and complete withdrawal of all EEO complaints she has currently pending with the AGENCY'S EEO office or with the EEOC. In addition, COMPLAINANT waives the right to sue over the matters raised in the complaints mentioned above and she acknowledges that those issues will not be made the subject of future litigation, union grievances or arbitration. COMPLAINANT waives any and all entitlements to compensatory damages or to any other benefits or costs or fees or back pay not specifically provided for above that relate to the issues which were accepted for investigation in this case. COMPLAINANT acknowledges that she has had the opportunity to seek legal counsel and to consult with a representative of her choice. COMPLAINANT also agrees that she will not file any formal complaint based on any issues which occurred prior to the date of signing of this agreement, and that this agreement resolves all issues she currently has pending with AGENCY, whether or not she has sought EEO counseling on those issues.
By letter to the Agency, Complainant alleged that the Agency was in breach of the settlement agreement. Complainant alleged that the parties had verbally agreed to additional provisions when the agreement was signed. She alleged that Agency officials had promised to remove all paperwork pertaining to her suspension from a file kept by her former supervisor; that Agency officials had promised to provide her with the opportunity for training after her reassignment to a new shop; that upon her reassignment, her new supervisor had no knowledge that she had been reassigned; and that her new supervisor stated that her Qualification Task List appeared to have been falsified.
In its April 2010 FD, the Agency concluded that no breach occurred. The Agency found that Complainant's suspension was cancelled; she was reassigned to the Directorate of Aircraft Production; and a corrected time sheet was submitted in February 2010 to ensure that she received pay for the five days she had been suspended in November 2009. The Agency noted that the agreement did not make reference to any other provisions requiring further Agency action. The Agency noted that the documents relating to Complainant's suspension were removed from her personnel file in March 2010 to address the concerns expressed in her letter alleging breach.
On appeal, Complainant argued that she was under "emotional duress" when she signed the agreement. She argued that the parties had verbally agreed to several provisions when the agreement was signed, such as ensuring that the documents pertaining to her suspension would remain confidential. She argued that she was subjected to a hostile work environment and loss of overtime after her reassignment in reprisal for her protected EEO activity. In response, the Agency urges the Commission to affirm its FD finding no breach because the Agency complied with all of the agreement's written terms.
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. Dep't of Def., EEOC Request No. 05960032 (Dec. 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. Dep't of Veterans Affairs, EEOC Request No. 05900795 (Aug. 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. U.S. Postal Serv., EEOC Request No. 05910787 (Dec. 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).
Upon review, we find that no breach of the February 18, 2010, settlement agreement occurred. The record reflects that the Agency cancelled the five day suspension and reassigned Complainant to the Directorate of Aircraft Production as a WG-3806-08 Sheet Metal Mechanic in accordance with the provisions of the agreement. If Complainant wanted the Agency to make any other guarantees, such as removing specific documents from her personnel file, she was free to negotiate with the Agency to include these provisions into the settlement agreement. See Jenkins-Nye v. Gen. Serv. Admin., EEOC Appeal No. 01851903 (Mar. 4, 1987). Although Complainant argued on appeal that she was under "emotional duress" when she signed the agreement, the record reflects that her representative was present during the settlement discussions, and both she and her representative signed the agreement.
Finally, we note that Complainant raised new allegations of discrimination on appeal. Complainant is advised to initiate contact with an EEO Counselor if she wishes to pursue the additional allegations. The Commission will not accept claims raised for the first time on appeal.
Accordingly, the Agency's decision finding no breach is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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 (S0610)
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 (Z0610)
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
_____9/29/10_____________
Date
2
0120102296
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120102296