Bonnie A. Robinson, Complainant,v.Pete Geren, Acting Secretary, Department of the Army, Agency.

Equal Employment Opportunity CommissionJun 28, 2007
0120062363 (E.E.O.C. Jun. 28, 2007)

0120062363

06-28-2007

Bonnie A. Robinson, Complainant, v. Pete Geren, Acting Secretary, Department of the Army, Agency.


Bonnie A. Robinson,

Complainant,

v.

Pete Geren,

Acting Secretary,

Department of the Army,

Agency.

Appeal No. 01200623631

Agency Nos. ARDUGWAY04SEP6981,

ARDUGWAY05MAY8717,

ARDUGWAY04JUL0001

DECISION

Complainant filed a timely appeal with this Commission from a final

decision (FAD) by the agency dated January 30, 2006, finding that it was

in compliance with the terms of the August 23, 2005 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.

The settlement agreement provided, in pertinent part, that:

(1) Immediately reassign the Complainant from: Secretary (OA)

GS-0318-05 with the Dugway Operations and Plans Office to Editorial

Assistant (OA) GS-1087-05 with the Dugway Public Affairs Office. Initial

assignment will be accomplished by a 30-day verbal detail. A formal

job description, classification, and placement in the position will be

accomplished within 30-days of the effective date of this agreement.

Within the Public Affairs Office (PAO) the Complainant will be given

the opportunity to perform duties and functions at the GS-1087-06 level.

(2) An Individual Development Plan (IDP) will be initiated/developed

within 30 days by the PAO with the complainant, and will include specific

elements of training, performance, and developmental assignments to

assist the complainant in effectively functioning and qualifying to

perform at the GS-1087-06 level.

(3) At 90-days from the date of reassignment the complainant's

position will be reviewed and evaluated by the PAO to determine whether

the complainant is capable and fully performing at the GS-06 level.

Based upon the PAO's evaluation and determination, if the complainant is

capable and fully performing at the GS-1087-06 level, the complainant

will be non-competitively promoted (thru accretion of duties) to a

GS-1087-06 at 90 days.

By letter to the agency dated December 16, 2005, complainant alleged

that the agency was in breach of the settlement agreement, and requested

that the three complaints which were settled through the signing of

the settlement agreement be reinstated for processing from the point

at which processing ceased. Specifically, complainant alleged that

the agency failed to conduct the review and evaluation of complainant's

performance at the 90 day point, as detailed in clause 3 above, and that

the agency had not promoted her to GS-6 at that time. Complainant claimed

that the settlement agreement specified that if she "met the objectives

of the IDP," she would be promoted to the GS-6 position. She stated

that she had satisfied the IDP objectives, even those revised by the PAO

supervisor, and that she had still been told by the PAO supervisor that

it was uncertain when she would be promoted to a GS-6. Complainant also

claimed that the agency had not incurred any legal detriment when it

signed the settlement agreement, which should invalidate it.

In its January 30, 2006 FAD, the agency concluded that it had

substantially complied with the terms of the settlement agreement.

Regarding clause 1, the agency found that complainant had been reassigned

within 30 days of the effective date of the settlement agreement,

beginning her tenure at the PAO on August 29, 2005. The formal job

description, classification and placement in the GS-1087-05 were completed

as of October 2, 2005, 10 days past the 30 day deadline, as evidenced

by the SF50 included in the file. Regarding clause 2, the agency stated

that it had developed an IDP within 30 days of the settlement agreement.

The IDP is dated September 21, 2005, and, following a progress review

on November 3, 2005, in which the PAO supervisor determined that she

was not performing at a level which would guarantee her promotion to

the GS-6 level, the IDP was revised, as of November 4, and complainant

was given additional goals to achieve. Regarding clause 3, the agency

noted that the 90th day would fall on November 27, 2005, as complainant

began her detail on August 29, 2005. However due to the PAO supervisor's

determination approximately 3 weeks earlier, on November 3, 2005, that

the IDP should be revised to give complainant more time to demonstrate

her competency at the skills needed for successful GS-6 performance,

a review did not take place on the exact 90th day. The FAD notes that

successful completion of the IDP did not guarantee an automatic promotion

to the GS-6 level, as complainant claimed. The PAO supervisor set goals

for complainant to reach before she would be comfortable with saying

that complainant was performing at a GS-6 level. The PAO supervisor

continued to work with complainant on her developmental goals, even past

the 90 days, in order to prepare her for her eventual promotion to GS-6.

Finally, the agency noted that it had in fact incurred a legal detriment

when it agreed to move the complainant from the Secretary (OA) GS-0318-05

position to the Editorial Assistant (OA) GS-1087-05 position, and when

it agreed that she would, conditionally, be non-competitively promoted

to the GS-1087-06 position with less time in grade than is usual.

On appeal, the agency provides evidence that complainant was in fact

promoted to the GS-6 level, effective as of February 19, 2006, following

the PAO's supervisor's assessment that complainant was performing at a

satisfactory level and complainant's completion of additional goals in

the revised IDP.

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 find that the agency has complied with the

terms of the settlement agreement of August 23, 2005. Complainant was

reassigned to the PAO and reported to her new office on her first

day of work following the signing of the agreement, August 29, 2005.

The agency effectuated a new position description and issued a SF50

making her transfer official, and although this happened 10 days past the

settlement agreement deadline, we find that the agency substantially

complied with this requirement. In compliance with clause 2, the

PAO supervisor designed an IDP which complainant used as a guide to

developmental activities. When, after a periodic review of her progress,

it was determined that complainant would need additional training in

order to be considered to be fully performing at the GS-6 level, the

PAO supervisor revised the IDP so that complainant may know what areas

of her skill set still needed further development. Although the 90 day

evaluation in clause 3 did not happen on the exact 90th day, we find that

the review conducted by the PAO supervisor on November 3 was notice to

complainant that she was not performing at the GS-6 level at that time.

She had been given additional goals and a revised IDP. It was incumbent

upon the PAO supervisor to ensure that complainant truly qualified for

the GS-6 position at the time of its award. The agency could simply

have conducted the review on the 90th day, said complainant was not

performing at the GS-6 level and declined to promote her. Instead,

the PAO supervisor continued to work with complainant, and to give her

milestones to accomplish, and she was eventually promoted to the GS-6

level on February 19, 2006. We find that complainant has been encouraged

to take advantage of the developmental opportunities offered by the PAO

supervisor, in order to fully prepare her for the GS-6 level duties she

will be performing and for competition to any higher level positions for

which she may apply in the PAO (as envisioned in subsequent clauses of

the settlement agreement). Although complainant's self-assessment of

her skill set differs from the PAO's supervisor's of it, we do not find

that the PAO supervisor acted unreasonably or out of compliance with the

terms of the settlement agreement when she revised the IDP, or when she

lengthened the time given to complainant to demonstrate GS-6 level work.

Additionally, we find that the agency did incur a detriment when it signed

the settlement agreement, as it was not legally obligated to transfer

complainant to a different job series, although at the same grade level,

nor was it obligated to shorten the time-in-grade for consideration of

her promotion to a higher grade level in her new job series.

CONCLUSION

We find therefore that that the agency has substantially complied with

the terms of the settlement agreement and AFFFIRM the agency's final

decision on complainant's claim of breach. We decline to reinstate

processing of complainant's three complaints, as she requested.

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

6-28-07

___________________

Date

1 Due to a new Commission data system, this case has been redesignated

with the above-referenced appeal number.

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2

0120062363

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P. O. Box 19848

Washington, D.C. 20036