Carolyn F. Cooper, Complainant,v.Ann M. Veneman, Secretary, Department of Agriculture, Agency.

Equal Employment Opportunity CommissionDec 17, 2004
01a41425_r (E.E.O.C. Dec. 17, 2004)

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