01a45816
05-26-2005
Ida Sue Terry, Complainant, v. Ann M. Veneman, Secretary, Department of Agriculture, Agency.
Ida Sue Terry v. Department of Agriculture
01A45816
May 26, 2005
.
Ida Sue Terry,
Complainant,
v.
Ann M. Veneman,
Secretary,
Department of Agriculture,
Agency.
Appeal No. 01A45816
Agency No. 970231
DECISION
Complainant filed a timely appeal with this Commission from a final
decision (FAD) by the agency dated July 2, 2004, finding that it was
in compliance with the terms of the March 3, 1997 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 provisions in question provide that:
(2a) A subsequent classification audit will be conducted of complainant's
current position (PD No. 8M5530) within 30 calendar days of the date of
this agreement. A Regional Classification Specialist will conduct the
audit of complainant's position for the purpose of determining whether
complainant's position is properly classified. If it is determined
that the position is classified at the GS-12 level, the complainant will
receive appropriate back pay and all benefits otherwise entitled.
The agency (specifically, the Recreation, Lands, Minerals and Engineering
Team Leader and the Forest Landscape Architect) will involve complainant
in the FY 1998 initial budget process for recreation and will continue
to involve complainant in future budget processes.
By letter to the agency dated October 6, 1999, complainant alleged that
the agency was in breach of the settlement agreement, and requested that
the agency implement its terms. Specifically, complainant alleged that
she disagreed with the outcome of the agency's audit of her position.
Complainant stated in a letter to the agency that it breached the
agreement because her input was not addressed in the audit or reflected
in the classification determination, that significant issues were not
considered and that there were no efforts to write an accurate position
description.
In its July 2, 2004 FAD, the agency concluded that the record of
its actions documented its compliance with the parties' settlement
agreement. More specifically, the agency claimed that it conducted an
audit of complainant's position in accordance with Office of Personnel
Management approved standards. After the audit, the agency concluded
that complainant's position was properly classified as a GS-11
Interdisciplinary position.
The agency also concluded that complainant was involved in budget meetings
in April 1998, is currently a member of the Forest Budget Allocation
Team and is actively involved in the budget planning and execution for
the Franklin County Lake Project. Based on this information, the agency
concluded that it had fully implemented the settlement agreement and
that it was not in breach.
ANALYSIS AND FINDINGS
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).
The record reflects that the agency conducted an audit of 8M5326
complainant's previous position and 8M5530 complainant's current position
to determine if they were properly classified and graded. The results
of the audit were contained in reports dated April 1997 and June 1998.
Although complainant disputes the conclusions of the audit reports,
the parties' settlement agreement did not require that they agree on the
contents of the audit, only that the agency conduct an audit. Therefore,
the Commission finds that the agency has not breached this part of the
settlement agreement.
Complainant contends that the agency breached the provision requiring
that she be included in the budget process for her division for FY
1998 and that she be included in future budget processes. The agency
provided documentation indicating that complainant attended a budget
allocation meeting on April 14, 1998 and that she has been involved
in budget planning for the Franklin County Lake Project. There is no
evidence on the record to contradict this information, therefore, the
Commission concludes that the agency has not breached this aspect of
the settlement agreement.
CONCLUSION
After a full review of the record, the Commission concludes that the
agency has not breached the settlement agreement entered into on March 3,
1997 as complainant alleged. For these reasons, the agency's decision
is affirmed.
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).
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
May 26, 2005
__________________
Date