01976319
04-02-1999
Mary L. Miller, Appellant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.
Mary L. Miller v. Department of Veterans Affairs
01976319
April 2, 1999
Mary L. Miller, )
Appellant, )
)
v. ) Appeal No. 01976319
) Agency No. 89-1038
Togo D. West, Jr., )
Secretary, )
Department of Veterans )
Affairs, )
Agency. )
______________________________)
DECISION
On August 12, 1997, appellant filed a timely appeal with this Commission
from a final decision (FAD) by the agency dated July 11, 1997, finding
that it was in compliance with the terms of the August 17, 1990 settlement
agreement into which the parties entered.<1> See 29 C.F.R. ��1614.402,
.504(b); EEOC Order No. 960, as amended.
The settlement agreement provided, in pertinent part, that:
(a) [Appellant] will function as evening shift supervisor in Respiratory
therapy with full supervisory responsibility for the shift.
(b) [Appellant] will be boarded at the end of the 1990-1991 appraisal
period for consideration of being promoted to GS-09.
By an undated letter to the agency, appellant alleged that the agency
was in breach of the settlement agreement, and requested that the
agency specifically implement the terms or, alternatively, reinstate her
complaint. Specifically, appellant alleged that on or about February 6,
1997, her supervisor informed her that she would be demoted and rotated
off her supervisory evening shift.
In its July 11, 1997 FAD, the agency concluded that it was in compliance
with the settlement agreement. The agency determined that, in accordance
with the agreement, appellant was promoted to a GS-09 position acting
as evening shift supervisor with full responsibility for the shift.
After acknowledging that appellant was indeed rotated from the evening
shift to the midnight shift on April 27, 1997, the agency noted that
the reassignment did not include a demotion, as appellant continued to
be employed as a Supervisory Respiratory Therapist, GS-9. The agency
found that the settlement agreement did not provide appellant the right
to remain in her evening shift rotation on a permanent basis. Finally,
the agency concluded that due to staff reductions, a reorganization of
the Respiratory Therapy Unit, and budgetary concerns, it was necessary
to rotate appellant's shift.
On appeal, appellant contends that there was no reduction in staff,
no reorganization of the Respiratory Therapy Unit, and that there was
no change in the budget that would justify her reassignment. Appellant
further alleges that the foregoing represented reprisal against her for
her prior EEO activity.
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 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 Commission has held that a settlement agreement that places a
complainant into a specific position, without defining the length of
service or other elements of the employment relationship, will not
be interpreted to require the agency to employ the complainant in the
identical job specified forever. See Parker v. Department of Defense,
EEOC Request No. 05910576 (August 29, 1991); Papac v. Department of
Veterans Affairs, EEOC Request No. 05910808 (December 12, 1991);
Elliott v. United States Postal Service, EEOC Appeal No. 01970474
(August 27, 1997). Here, appellant was placed in a position as an
evening shift supervisor on or about March 8, 1992. Appellant and the
agency dispute whether there existed staffing problems or whether a
reorganization within appellant's work location took place. Regardless,
the settlement agreement does not contain a provision prohibiting
reassignments. The "reassignment" did not occur until more than six
years after the settlement agreement was executed. Because the agency
adhered to the stated terms of the agreement, we find that appellant has
not demonstrated a breach of the settlement agreement. However, to the
extent that appellant alleges that her reassignment was in reprisal for
prior EEO activity, she is advised to initiate EEO Counselor contact.
Accordingly, the agency's final decision finding that it was in compliance
with the settlement agreement is AFFIRMED for the reasons set forth
herein.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. In the alternative, you may file a
civil action AFTER ONE HUNDRED AND EIGHTY (180) CALENDAR DAYS of the date
you filed your complaint with the agency, or filed your appeal with the
Commission. 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. Filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1092)
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:
April 2, 1999
____________________________
DATE Ronnie Blumenthal, Director
Office of Federal Operations
1The agency was unable to supply a copy of a certified mail return receipt
or any other material capable of establishing the date appellant received
the agency's final decision. Accordingly, since the agency failed to submit
evidence of the date of receipt, the Commission presumes that appellant's
appeal was filed within thirty (30) days of receipt of the agency's final
decision. See, 29 C.F.R. �1614.402.