Kathy McLemore, Complainant, v. Mary E. Peters, Secretary, Department of Transportation, Agency. Appeal No. 0120071072 DECISION Complainant filed a timely appeal with this Commission from a final decision by the agency dated November 15, 2006, finding that it was in compliance with the terms of a February 12, 2003 settlement agreement. See 29 C.F.R. § 1614.402; 29 C.F.R. § 1614.504(b); and 29 C.F.R. § 1614.405. The February 12, 2003 settlement agreement provided, in pertinent part, that: 2.a. No reprisal action will be taken against the Aggrieved.1 By letter to the agency dated September 17, 2006, complainant claimed that the agency was in breach of provision 2.a. Specifically, complainant claimed that the agency has committed various acts of reprisal, in violation of the agreement. Complainant cited thirteen incidents of reprisal that purportedly occurred after the settlement agreement was entered; and that these incidents occurred between April 2003 and June 2006. In its November 15, 2006 final decision, the agency determined that with respect to most of the breach claims, complainant did not notify the agency within thirty days of the alleged breach, as required by 29 C.F.R. § 1614.504(a). The agency therefore found twelve out of complainant's thirteen breach claims were not raised in a timely manner. The agency further found no breach of claim that it deemed timely (not given adequate notification of her new job duties). The agency determined that based on a review of the record, complainant was given adequate notice and proper information concerning her job duties. Further, the agency noted that on October 17, 2006, complainant submitted a second submission claiming that the agency subjected her to reprisal when on September 29, 2006, a manager did not invite her to a "Year End Celebration Pizza Party" to which approximately forty co-workers were invited; and that on October 5, 2006, she received a gift and note of apology from the manager. The agency stated that based on a review of the manager's apology note, the act of omitting complainant from the invitational list was not to be deliberate or retaliatory. 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). The Commission has held that a complaint which alleges reprisal or further discrimination in violation of a settlement agreement's "no reprisal" clause is to be processed as a separate complaint and not has a breach of settlement. See Bindal v. Department of Veterans Affairs, EEOC Request No. 05900225 (August 9, 1990); 29 C.F.R. § 1614.504(c). The Commission notes that the agency determined that most of the breach claims were not timely filed. However, the essence of all of the breach claims reflect that complainant is raising new claims of reprisal regarding incidents that occurred after the settlement agreement was entered. Therefore, all the claims of further harassment and discrimination should be raised as a new, separate EEO claim, if complainant has not already done so. Accordingly, the agency's determination of no breach of the instant settlement agreement is AFFIRMED. 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 (S0900) 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 (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 March 9, 2007 __________________ Date 1 The settlement agreement also provides for various other matters, including a detail to an identified agency position, and a requirement that some agency officials would be required to participate in a briefing concerning sexual harassment guidelines. These provisions are not at issue in the instant appeal. ?? ?? ?? ?? 2 0120071072 U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P. O. Box 19848 Washington, D.C. 20036 4 0120071072 5 0120071072