01976289
11-06-1998
Merry J. Adams, Appellant, v. Louis Caldera, Secretary, Department of the Army, (National Guard Bureau), Agency.
Merry J. Adams v. Department of the Army
01976289
November 6, 1998
Merry J. Adams, )
Appellant, )
)
v. ) Appeal No. 01976289
) Agency Nos. T-0046-AK-A-01-96-H
Louis Caldera, ) T-0336-AK-A-03-96-HO
Secretary, )
Department of the Army, )
(National Guard Bureau), )
Agency. )
_________________________________)
DECISION
Appellant filed the instant appeal alleging that the agency breached
provision 4(g) of a settlement agreement the parties entered into on
May 10, 1996.
Provision 4(g) of the settlement agreement provided (in part):
The Complainant agrees that if the Complainant receives a satisfactory
performance appraisal, the Complainant will receive priority placement
status, and will be assigned to the first vacated Occupational Family
Group GS-300-05 position outside the Directorate, United States Fiscal
Property Office, Alaska National Guard Armory, Fort Richardson, Alaska
99505.
By memorandum dated April 25, 1997 appellant informed the agency that she
became aware on April 2, 1997 that the agency had breached the priority
placement portion of provision 4(g) of the agreement. Appellant claimed
that on March 4, 1997,
another employee with the Alaska National Guard was transferred into
[appellant's] 'detailed administrative position' as the permanent occupant
of the DOIM [Directorate of Information Management]. This position is
in the Occupational Family Group GS 300-05 series. This employee['s]
transfer was the result of her EEO settlement with the Alaska National
Guard.
Appellant filed the instant appeal on June 27, 1997 alleging that
the agency breached the priority placement portion of provision 4(g)
of the agreement. Appellant claims that the agency did not respond
to her April 25, 1997 memorandum. By letters dated November 5 and 13,
1997 the agency issued separate decisions (both signed by the same Equal
Opportunity Officer) finding that the agency complied with the agreement.
EEOC Regulation 29 C.F.R. �1614.504(a) provides that any settlement
agreement knowingly and voluntarily agreed to by the parties shall be
binding on both parties. If the complainant believes that the agency
has failed to comply with the terms of a settlement agreement, then the
complainant shall notify the EEO Director of the alleged noncompliance
"within 30 days of when the complainant knew or should have known of
the alleged noncompliance." 29 C.F.R. �1614.504(a). The complainant
may request that the terms of the settlement agreement be specifically
implemented or request that the complaint be reinstated for further
processing from the point processing ceased. Id.
Settlement agreements are contracts between the appellant 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
(Aug. 23, 1990); In re Chicago & E.I. Ry. Co., 94 F.2d 296 (7th Cir.
1938). In reviewing settlement agreements to determine if there is a
breach, the Commission is often required to ascertain the intent of the
parties and will generally rely on the plain meaning rule. Wong v. United
States Postal Service, EEOC Request No. 05931097 (Apr. 29, 1994) (citing
Hyon v. United States Postal Service, EEOC Request No. 05910787 (Dec. 2,
1991)). This rule states that if the writing appears to be plain and
unambiguous on its face, then its meaning must be determined from the
four corners of the instrument without any resort to extrinsic evidence
of any nature. Id. (citing Montgomery Elevator v. Building Engineering
Service, 730 F.2d 377 (5th Cir. 1984)).
The agency found in the November 5 and 13, 1997 decisions that there
have been "no vacancies" in the Occupational Family Group GS-300-05
series "since the settlement agreement." The agency stated in the
November 5, 1997 decision: "When a GS-300-05 position becomes available,
the complainant will be priority placed in that position." The agency
explained in the November 5, 1997 decision that an individual filling a
position in the Occupational Family Group GS-300-06, Secretary, was moved
from the Director of Logistics office to the Director of Information
Management's office. The agency further explained in the November 5,
1997 decision:
This individual was moved along with the position and funding authority
to settle a [complaint] of discrimination. The Agency's move of the
GS-300-06 Secretary was not to fill an authorized, vacated position.
The agency has not produced any clearly identified evidence, such as
affidavits from appropriate agency personnel, to show whether there have
been any vacancies, since the settlement agreement was entered into, in
the Occupational Family Group GS-300-05 position outside the Directorate,
United States Fiscal Property Office, Alaska National Guard Armory, Fort
Richardson, Alaska 99505. The agency also has not produced any clearly
identified evidence to show the position and grade level (after March 4,
1997) held by the individual referred to in appellant's April 25, 1997
memorandum. The Commission finds that the agency has failed to provide
evidence showing that it complied with provision 4(g) of the agreement.
The Commission shall remand the matter so that the agency can supplement
the record with evidence showing that the agency has complied with
provision 4(g) of the settlement agreement.
The agency's decision finding that the settlement agreement has not been
breached is VACATED and we REMAND the matter to the agency for further
processing in accordance with this decision and applicable regulations.
ORDER
The agency shall supplement the record with the following evidence in
order to show that the agency has complied with provision 4(g) of the
settlement agreement:
1. Affidavits and/or other documents from appropriate agency personnel
showing whether there have been any vacancies, since the settlement
agreement was entered into, in the Occupational Family Group GS-300-05
position outside the Directorate, United States Fiscal Property Office,
Alaska National Guard Armory, Fort Richardson, Alaska 99505.
2. Personnel actions showing the position and grade level (after March
4, 1997) held by the individual referred to in appellant's April 25,
1997 memorandum.
Within 30 days of the date this decision becomes final the agency shall
issue a new decision determining whether the agency breached provision
4(g) of the settlement agreement. A copy of the agency's new decision
must be sent to the Compliance Officer referenced herein.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0595)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the appellant. If the agency does not comply with the Commission's
order, the appellant may petition the Commission for enforcement of
the order. 29 C.F.R. �1614.503 (a). The appellant also has the right
to file a civil action to enforce compliance with the Commission's
order prior to or following an administrative petition for enforcement.
See 29 C.F.R. �� 1614.408, 1614.409, and 1614.503 (g). Alternatively,
the appellant has the right to file a civil action on the underlying
complaint in accordance with the paragraph below entitled "Right to File
A Civil Action." 29 C.F.R. �� 1614.408 and 1614.409. A civil action for
enforcement or a civil action on the underlying complaint is subject to
the deadline stated in 42 U.S.C. �2000e-16(c) (Supp. V 1993). If the
appellant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. �1614.410.
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. �l6l4.604(c).
RIGHT TO FILE A CIVIL ACTION (R0993)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court. 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:
November 6, 1998
DATE Ronnie Blumenthal, Director
Office of Federal Operations