01a41425_r
12-17-2004
Carolyn F. Cooper, Complainant, v. Ann M. Veneman, Secretary, Department of Agriculture, Agency.
Carolyn F. Cooper v. Department of Agriculture
01A41425
December 17, 2004
.
Carolyn F. Cooper,
Complainant,
v.
Ann M. Veneman,
Secretary,
Department of Agriculture,
Agency.
Appeal No. 01A41425
Agency No. 000875
DECISION
Complainant filed the instant appeal alleging breach of a settlement
agreement. On August 9, 2002, the parties entered into a settlement
agreement resolving the complaint. The settlement agreement provided,
in pertinent part, that:
The agency agrees to:
Promote [complainant] to the position of Agricultural Commodity Grader
(Grain), GS-1980-7, retroactive to July 16, 2000, and compensate
Ms. Cooper pursuant to the Back Pay Act, 5 U.S.C. Section 5596. The
position will have promotional potential to GS-9, however, [complainant]
will be required to successfully complete a grain grading certification
process within a specified period of time prior to promotion to the
GS-9 level.
Pay all customary and reasonable expenses to relocate [complainant]
to the League City area.
Assign [complainant] to the Galveston duty point, which is the
location where [complainant's] services are needed. For clarification,
[complainant] may be assigned to other duty points, however, her primary
duty point will be Galveston.
Allow [complainant] to report for duty on or after September 22, 2002
(Pay period 19).
On December 9, 2003, complainant alleged that the agency breached the
settlement agreement. Specifically, complainant indicated that although
she was to be placed at the same level as the other male selectees upon
passing a grading certification exam under the settlement agreement,
she was not placed at the same level as the other selectees after passing
her certification exam in 2003. Complainant also indicated that she was
hired as a GS-7, step 2, with a potential GS-9, step 2, after passing
the certification exam, under the settlement agreement.
The Commission has held that settlement agreements are contracts between
the complainant and the agency and it is the intent of the parties
as expressed in the contract, and not some unexpressed intention, that
controls the contract's construction. Eggleston v. Department of Veterans
Affairs, EEOC Request No. 05900795 (August 23, 1990). In addition,
the Commission generally follows the rule that if a 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 v. Building Engineering
Services, 730 F.2d 377 (5th Cir. 1984). Although the Commission is not
generally concerned with the adequacy or fairness of the consideration in
a settlement agreement as long as some legal detriment is incurred as part
of the bargain, when one of the parties to a settlement incurs no legal
detriment, the agreement will be set aside for lack of consideration.
See Morita v. Department of the Air Force, EEOC Request No. 05960450
(December 12, 1997).
The record indicates that on September 13, 2002, complainant was promoted
to the position of Agricultural Commodity Grader (Grain), GS-1980-7,
step 3, retroactive to July 16, 2000, with promotional potential to GS-9,
pursuant to the settlement agreement. The record also indicates that on
April 20, 2003, complainant, after passing a grain grading certification
exam, was promoted to the position of Agricultural Commodity Grader
(Grain), GS-1980-9. After a review of the settlement agreement, the
Commission finds that complainant's contentions that after her passing of
the certification exam in 2003, she was to be placed at the same level
as the other selectees, i.e., who were previously promoted to GS-7 on
July 16, 2000, are beyond the scope thereof. The settlement agreement
provides that after her passing of a grain grading certification exam,
complainant will be promoted to the GS-9 level; but, it does not provide
that she will be placed at the same level as the other selectees.
The Commission notes that complainant has not contested other provisions
of the settlement agreement other than provision 1, described above.
Accordingly, we find that the agency has not breached the settlement
agreement.
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
December 17, 2004
__________________
Date