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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0120062363
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036