01A20103_r
08-22-2002
Deborah A. Frahm, Complainant, v. Paul H. O'Neill, Secretary, Department of the Treasury, Agency.
Deborah A. Frahm v. Department of the Treasury
01A20103
August 22, 2002
.
Deborah A. Frahm,
Complainant,
v.
Paul H. O'Neill,
Secretary,
Department of the Treasury,
Agency.
Appeal No. 01A20103
Agency No. 01-0034B
DECISION
Complainant filed an appeal with the Commission alleging that the agency
breached the terms of the June 13, 1994 settlement agreement into which
the parties entered.
According to its language, �[the agreement] resolves the letter dated
February 23, 1994, proposing adverse action against [complainant],
the decision letter dated April 6, 1994, and the matters raised by
[complainant] with the EEO Counselor.�
The agreement provided, in pertinent part, that:
(4) [Complainant's] reassignment will be recorded in her official
personnel file as a voluntary request. Any and all records pertaining to
the adverse action will be destroyed, except one copy will be maintained
in the [agency's] Greensboro District EEO office. The one retained copy
of records will only be used in the event of a breach of this agreement.
[The agency] agrees to reimburse [complainant] for all pay previously
lost during her earlier, expunged thirty (30) day suspension, including
AUO and applicable interest. [The agency] further agrees to reinstate
thirty (30) days of credible service for this period of suspension,
including the reinstatement of annual and sick leave not accrued as
result of the suspension.
The [agency] will:
Within 30 days of the execution of this Agreement, remove and destroy
all references in [complainant's] records regarding the adverse action
described in the decision letter dated April 6, 1994, except for one
copy of records provided for in paragraph four (4) above.
By letter to the agency dated August 3, 2001, complainant alleged that
the agency was in breach of the settlement agreement. Specifically,
complainant alleged that the agency failed to remove records of an
expunged suspension in accordance with the terms of the agreement.
When the agency did not respond to her breach claim, complainant filed
the present appeal with the Commission.
On appeal, complainant states that she entered into the present agreement
to resolve disciplinary action taken against her while employed with
the agency and to resolve her EEO complaint. Complainant states that
the disciplinary action taken against her in 1994 was a proposed 30-day
suspension. Complainant claims that according to the settlement agreement
the suspension was to be rescinded and expunged from her records.
Complainant explains that after retiring from the agency, she applied
for Enrolled Agent status to continue to practice before the agency.
Complainant states that on July 13, 2001, she received a proposed denial
letter from the agency which mentioned the proposed suspension in 1994,
which she claims was to be expunged from her records. In order to
remedy the breach, complainant seeks enforcement of the agreement and
expungement of the necessary files.
The record contains a copy of a letter dated July 9, 2001, responding to
complainant's application for enrollment to practice before the agency.
The letter notifies complainant that the Director of Practice has
received information that in 1994, she was suspended from work for
30 days while employed with the agency; however, she failed to report
this suspension on her Form 23 (Application for Enrollment to Practice
before the agency). According to the letter, the agency relied in part
on complainant's failure to disclose the 30-day suspension as a basis
for denying her application.
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 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 present case, the Commission is unable to determine whether the
agency breached the terms of the June 13, 1994 agreement. Provision (4)
states that complainant's reassignment will be recorded in her official
personnel file as a voluntary request and also states that all records
pertaining to the adverse action will be destroyed. The agreement,
however, does not specify which adverse action is referred to in
this provision. Provision (8) states that the agency will reimburse
complainant for all pay previously lost during her earlier, expunged
thirty (30) day suspension; however, it is unclear whether this is
the adverse action referred to elsewhere in the settlement agreement.
Similarly, although provision (13) states that the agency will remove
and destroy all references in complainant's records regarding the
adverse action described in the decision letter dated April 6, 1994,
the Commission is unable to determine the nature of the adverse action
mentioned. We note that in an introductory paragraph, the agreement
purports to resolve the letter dated February 23, 1994, proposing adverse
action against complainant, the decision letter dated April 6, 1994,
and the matters raised by complainant with the EEO Counselor; however,
the record does not contain copies of any of these documents. Thus,
the Commission remands the matter for further information.
Accordingly, the matter is REMANDED to the agency for further processing
in accordance with the Order below.
ORDER
The agency shall supplement the record with documentation showing whether
it has complied with provisions (4), (8), and (13) of the June 13, 1994
settlement agreement. Specifically, the agency shall place into the
following documents into the record: copies of the letter dated February
23, 1994 (proposing adverse action against complainant), the decision
letter dated April 6, 1994, complainant's request for EEO counseling,
the EEO Counselor's report, and the EEO complaint. Within 30 days of
the date this decision becomes final, the agency shall issue a decision
on whether it breached the above mentioned paragraphs of the settlement
agreement. A copy of the decision must be submitted to the Compliance
Officer, as referenced herein.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the complainant. If the agency does not comply with the Commission's
order, the complainant may petition the Commission for enforcement
of the order. 29 C.F.R. � 1614.503(a). The complainant also has the
right to file a civil action to enforce compliance with the Commission's
order prior to or following an administrative petition for enforcement.
See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g).
Alternatively, the complainant has the right to file a civil action on
the underlying complaint in accordance with the paragraph below entitled
"Right to File A Civil Action." 29 C.F.R. �� 1614.407 and 1614.408.
A civil action for enforcement or a civil action on the underlying
complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c)
(1994 & Supp. IV 1999). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 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 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 (R0900)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court within ninety (90) calendar days from the date
that you receive this decision. In the alternative, you may file a
civil action after one hundred and eighty (180) calendar days of the date
you filed your complaint with the agency, or filed your appeal with the
Commission. 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. Filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1199)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
August 22, 2002
__________________
Date