01A04608_r
10-09-2002
Amy S. Daniels, Complainant, v. Gale A. Norton, Secretary, Department of the Interior, Agency.
Amy S. Daniels v. Department of the Interior
01A04608
October 9, 2002
.
Amy S. Daniels,
Complainant,
v.
Gale A. Norton,
Secretary,
Department of the Interior,
Agency.
Appeal No. 01A04608
DECISION
Complainant timely appealed the agency's decision dated May 18, 2000,
which concluded that the agency had not breached a September 9, 1998
settlement agreement.
On September 9, 1998, the parties resolved complainant's complaints by
entering into a settlement agreement, which provided, in pertinent part,
that the agency agrees to:
(3) Enter into a formal mentoring agreement between [complainant] and
[supervisor A] whereby [supervisor A] will provide career development
advice and guidance to [complainant].
(4) Meet with complainant for a period of not less than one hour once
every month for the purpose of providing performance feedback. . .
(5) Identify those factors which, in [supervisor A's] opinion, distinguish
[complainant's] duties at the GS-11 and GS-12 levels, and to provide
[complainant] with assignments which reflect those distinguishing factors
so as to provide her with an opportunity to demonstrate successful
performance at the GS-12 level. Those assignments will be of such a
nature that they can be assigned and completed prior to January 1, 1999,
and the Parties agree that said assignments will be assigned and that
[complainant] will attempt to complete [the assignments]by that date.
Within two weeks from the date on which the last assignment is completed,
[supervisor A] will determine whether [complainant] has successfully
demonstrated performance at the GS-12 level, and will advise [complainant]
accordingly. [Supervisor A] agrees to provide appropriate feedback on
said assignment in a timely manner. Assuming [Supervisor A] determines
that [complainant] has performed at the G-12 level, [Supervisor A]
will request [complainant's] promotion by virtue of accretion of
duties to the GS-12 level by submitting the appropriate paperwork to
Human Resources within two weeks from the date of that determination,
together with a request that the promotion be expedited. [Complainant]
acknowledges the possibility that [Supervisor A] may determine that
[complainant] has not performed GS-12 duties successfully.<1>
On September 13, 1999, complainant alleged that the agency breached
provisions 3, 4, and 5 of the settlement agreement. Regarding provisions
3 and 4, complainant indicated that on May 7, 1999, she was informed
that she was no longer going to be the lead on LORP (the Project
Manager for the Lower Ownes River Project) after she completed the
WELP (Women's Executive Leadership Program). Regarding provision 5,
complainant claimed she was not given a list of specific tasks until
October 16, 1998, and the completion date was not set as January 1, 1999.
Complainant indicated that she signed the settlement agreement believing
that she would get to the GS-12 position whenever she completed the task,
described above, �whether it was next week or the next year.� Finally,
complainant claimed she was discriminated against in reprisal for prior
protected activity, and cited some incidents including not being given
a Star Award and not being promoted.
In May 18, 2000, the agency issued a decision concluding that it complied
with the terms of the settlement agreement. The agency determined
that it complied with provisions 3 and 4. Regarding provision 5, the
agency determined that complainant was given a list of specific tasks to
perform on October 18, 1998, with a completion date of all assignments of
January 2, 1999. The agency determined that the record did not support
a finding that the tasks were completed within this time frame.
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).
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.
If complainant believes that the agency has failed to comply with
the terms of a settlement agreement, complainant shall notify the
EEO Director, in writing, of the alleged noncompliance within thirty
days of the date when complainant knew or should have known of the
alleged noncompliance. Complainant may request that the terms of the
settlement agreement be specifically implemented or, alternatively,
that the complaint be reinstated for further processing from the point
processing ceased.
Regarding provision 3 and 4, the Commission determines that complainant's
claims concerning the denial of the LORP assignment is beyond the scope
of the terms of the settlement agreement. The settlement agreement does
not preclude the agency from taking such action. To the extent that
complainant interpreted the settlement agreement as mandating that the
agency provide her with the LORP assignment, such interpretation should
have been reduced to writing as part of the settlement agreement.
Moreover, regarding provisions 3 and 4, the Commission determines
further that complainant did not timely raise this breach claim.
Although complainant asserts that she was informed on May 7, 1999,
that she was not leading the LORP project, complainant did not notify
the agency of alleged breach until September 13, 1999.
Regarding provision 5, complainant's claimed that the agency breached the
settlement agreement by not providing her a time frame with a completed
list of tasks in order to be promoted to GS-12. However, the record
supports a determination that a time frame was indeed imposed for the
completion of tasks: January 2, 1999. Complainant knew, or should
have known about the alleged breach regarding provision 5, well prior
to the date that she raised the breach claim on September 13, 1999.
The Commission therefore determines that this breach claim is also
untimely raised.
As a final matter, in addition to the breach claim, complainant
is claiming that she was subjected to reprisal after the settlement
agreement was signed. Pursuant to 29 C.F.R. � 1614.504(c), allegations
that subsequent acts of discrimination violate a settlement agreement
shall be processed as a separate complaint under 29 C.F.R. � 1614.106.
If complainant wishes to pursue such a claim of discrimination, then
complainant should contact an EEO Counselor.
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
October 9, 2002
__________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
__________________
Date
______________________________
1The Commission notes that provisions 1 and 2 of the settlement agreement
provided payment to complainant of $7,300.00 in cash, and $1,999.00 as
a performance related award. These provisions are not at issue in the
instant appeal.