01A30286_r
04-08-2004
P.J. Saylor, Complainant, v. Gale A. Norton, Secretary, Department of the Interior Agency.
P.J. Saylor v. Department of the Interior
01A30286
4/8/2004
.
P.J. Saylor,
Complainant,
v.
Gale A. Norton,
Secretary,
Department of the Interior
Agency.
Appeal No. 01A30286
DECISION
Complainant filed a timely appeal with this Commission from a final
decision by the agency dated September 11, 2002, finding that it was in
compliance with the terms of an October 31, 2000 settlement agreement.
See 29 C.F.R. � 1614.402; 29 C.F.R. � 1614.504(b); and 29 C.F.R. �
1614.405.
The October 31, 2000 settlement agreement provided, in pertinent part,
that:
(1) Shenandoah National Park will engage an ergonomics specialist who
will conduct an evaluation of the Big Meadows Campground Registration
building. Recommendations will be identified and changes will be made
in concurrence with the Park Accessibility Coordinator and Historic
Preservation Specialist. Arrangement for the evaluation will be made
within 14 days of signing this agreement.
Suggestions for the review are:
a. An ergonomic chair that raises higher with a footrest.
b. Equipment relocation to facilitate less bending and twisting.
c. Ergonomic computer accessories.
d. Alternate light sources.
e. Evaluate step into office.
f. Evaluate height of transaction window.
(3) The following maintenance work orders will be assigned the highest
priority in order to assure their completion within ten days of the
signing of this agreement.
a. Shenandoah National Park has, at [complainant's] request, turned
down the temperature on the hot water heater.
b. Rewire fanlights on a separate switch from the fluorescent lights
and installed a non-fluorescent light over the door.
c. Install an exhaust fan in the bathroom.
(4) [Complainant] will be granted the flexibility she needs in regards
to taking breaks. She will bring it to the attention of her supervisor,
when practical. She will ensure that the operation remains covered
while she is on break, and will provide appropriate signage.
(5) Shenandoah National Park will provide [complainant] with an
alternate work schedule to be agreed upon by both parties. If the
work schedule needs to be altered, [complainant] will be consulted and
there will be mutual agreement on the alterations. A review of this
accommodation will occur at the end of the 2000 season.
[Complainant] will be provided a parking space for her personal vehicle
beside the office.
[Complainant] will be offered the opportunity to make up time when
she has been out sick during the 80 hour pay period to ensure that she
works the full 80 hours within the pay period when possible. It will
be deemed possible when the Park is able to offer and [complainant]
is able to work that time.
[Complainant] will be allowed to use a modified dress code to accommodate
her body temperature fluctuations. She will be required to wear the
full uniform.
Until another mutually agreeable option becomes available, [complainant]
may park her RV at an agreed upon campsite. This campsite will be
removed from the inventory and will be used by [complainant] in order
to rest or utilize stress/pain management techniques. [Complainant] may
hookup to electricity. All standard campground rules and regulations
will be abided by and payment will be made for the campsite if
[complainant] camps overnight for recreational purposes according to
SNP policy.
Parkwide ADA training will be provided, with an emphasis on invisible
or less than obvious disabilities. This training will be offered to
all employees, and mandatory for all supervisors who are available on
the scheduled day. This training will be conducted before Memorial
Day of 2001.
[Complainant] will be allowed to drive a government vehicle and attend
the EVOC training.
[Complainant] will retain her non-competitive right to hold a supervisory
position at a Grade 6 level and will be considered for the next available
slot for reinstatement.
A portion of [complainant's] sick leave, annual leave, and time-off
award will be reinstated to compensate for leave used while on LWOP.
The amounts are 111 hours of sick leave; 141 hours of annual leave;
and 24 hours of time-off award.
In its final decision dated September 11, 2002, the agency stated that
complainant's attorney filed a claim alleging breach of the settlement
agreement on May 15, 2002. The agency stated that complainant asserted
that the agreement was breached when complainant was not reinstated in
a GS-6 position that became available and was notified on April 29, 2002
that someone else would fill the position. The record does not contain
a copy of the May 15, 2002 breach claim that was referenced by the agency.
The agency found no breach. The agency reviewed provisions (1)-(13)
and found that it complied with each provision. Regarding provision
(12), the agency found that �[complainant] applied for a merit promotion
vacancy, was placed on the GS-5 and GS-6 selection certificates, was
considered for selection along with the other candidates, but was not
selected for the position.� The agency further found that while the
agreement provides that complainant will be considered for the next
available slot for reinstatement, the agreement does not provide that
complainant would automatically be promoted into the position.
On appeal, complainant, through her attorney, asserts that provision
(12) does provide for complainant to be automatically promoted.
Specifically, complainant asserts that if she had understood that the
agency would later deny she had a �right to automatic reinstatement to
a GS-6 position for which she was qualified, she never would have signed
the agreement.� In addition, complainant asserts that in March 2002,
complainant's supervisor spoke with one of the parties who signed
the settlement agreement on behalf of the agency and the mediator
who drafted the agreement regarding the meaning of provision (12).
Complainant asserts that these individuals confirmed to complainant's
supervisor �that the intention of provision No. 12 was that [complainant]
would automatically be placed in a GS-6 position for which she was
qualified without her having to compete for the position.� In addition,
complainant states that the agency �made an illusory attempt to insert
references on [complainant] into the file relating to the supervisory
position.� Furthermore, complainant states �not only did the [agency]
violate the agreement by not placing [complainant] in the position,
it violated it by not even considering her for the position for which
she was qualified.� (emphasis in the original). Moreover, complainant
claims that she has been subjected to additional acts of discrimination
and retaliation, including constructive discharge, subsequent to the
execution of the settlement agreement.
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 Commission first notes that because the record does not contain a copy
of complainant's breach claim of May 15, 2002, the Commission is unable
to ascertain whether complainant is claiming breach solely of provision
(12), pertaining to complainant being considered for reinstatement to
a Grade 6 level position, or whether complainant is claiming breach of
other provisions of the settlement agreement. In addition, the Commission
notes that the agency in its final decision refers to various documents
to support its assertion that it did not breach provisions (1) - (13);
however, the record does not contain copies of any of these documents.
Regarding provision (12), the Commission finds that based on the plain
language of the agreement, provision (12) only provides that complainant
will be considered for the �next available slot for reinstatement�
and not automatically placed in the subject position. Nevertheless,
the Commission is unable to determine whether the agency complied with
provision (12). While the agency asserts that complainant was considered
for a merit promotion vacancy, the record is devoid of evidence as to
whether complainant was �considered� for the GS-6 position as provided
for by provision (12) of the settlement agreement.
Finally, regarding complainant's claims on appeal, that she has
been subjected to acts of discrimination and retaliation, including
constructive discharge, subsequent to the execution of the settlement
agreement, such claims are properly treated as separate complaints.
See 29 C.F.R. � 1614.504(c). Thus, we advise complainant to contact an
EEO Counselor, regarding these matters, if she has not already done so.
The agency's finding of no breach of the October 31, 2000 settlement
agreement is VACATED. This matter is REMANDED to the agency for further
processing in accordance with the ORDER below.
ORDER
The agency is ORDERED to take the following actions:
(1) The agency shall supplement the record with complainant's May 15,
2002 breach claim.
(2) The agency shall also supplement the record with affidavit and/or
documentary evidence as to whether it is in compliance with the specific
provisions of the October 31, 2000 settlement agreement which complainant
alleges have been breached in her May 15, 2002 claim.
(3) Within thirty calendar days of the date this decision becomes final,
the agency shall issue a new determination as to whether the agency
breached said provisions of the settlement agreement.
A copy of the agency's new determination regarding compliance with
the settlement agreement must be sent to the Compliance Officer as
referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
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 complainant. If the agency does not comply with the Commission's
order, the complainant may petition the Commission for enforcement
of the order. 29 C.F.R. � 1614.503(a). The complainant 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. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g).
Alternatively, the complainant 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. �� 1614.407 and 1614.408.
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)
(1994 & Supp. IV 1999). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 29 C.F.R. � 1614.409.
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 (R0900)
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 within ninety (90) calendar days from the date
that you receive this decision. 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 (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
4/8/2004
Date