0120122378
09-20-2012
Sharon L. Duell, Complainant, v. Michael B. Donley, Secretary, Department of the Air Force, Agency.
Sharon L. Duell,
Complainant,
v.
Michael B. Donley,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 0120122378
Agency No. 6X1512002
DECISION
Complainant filed a timely appeal with this Commission from a final decision (FAD) by the Agency dated April 18, 2012, finding that it was in compliance with the terms of the 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.
BACKGROUND
Believing that the Agency subjected her to unlawful discrimination, Complainant contacted an Agency EEO Counselor to initiate the EEO complaint process. On May 23, 2006, Complainant and the Agency entered into a settlement agreement to resolve the matter. The settlement agreement provided, in pertinent part, that:
(3)(a) Complainant will continue with her current detail at the Outdoor Recreational Facility. 21 SVS/CC will permanently reassign Complainant to a position at Air Force Space Command (AFSPC) located at Peterson AFB, Colorado no later than one year from the date of the execution of this Agreement by all parties.
(b) By signing this document, Complainant understands that she will not be afforded any special consideration other than that granted under USC 351 in the event her position is impacted by RIF, Base Realignment BRAC, or any other action which results in the elimination of Complainant's position. It is further understood that Complainant will not be placed anywhere in the 21SVS Fitness Center under RIF procedures or otherwise.
By letter to the Agency dated April 11, 2012, Complainant alleged that the Agency was in breach of the settlement agreement, and requested that the Agency specifically implement its terms. Complainant alleged that the Agency failed to permanently reassign her because on March 14, 2012, nearly six years after she signed the agreement, she was told that her position was being abolished and to prepare a resume. Complainant does not dispute that she was reassigned, rather she states that the reassignment was not permanent.1 Complainant asserts that her position was considered an "over-hire" position.
In its April 18, 2012 FAD, the Agency concluded it was not in breach of the agreement. The Agency noted that Complainant's SF-50 stated that she was reassigned effective September 17, 2006, and there was no language indicating it was a "not to exceed" (non-permanent) position annotated on the form.
On appeal, Complainant reiterates that as an "over-hire" position, she was not permanently reassigned. On response to the appeal, the Agency noted that the SF-50 indicated that the reassignment was permanent. The Agency stated that Complainant's position was selected for abolishment as part of a realignment of positions within the Agency. The Agency argues that the realignment of positions was not foreseeable in 2006.
ANALYSIS
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. Dep't of Def., 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. Dep't 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. U.S. Postal Serv., 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).
In the instant case, the Commission finds that, based on the evidence provided, Complainant was permanently reassigned as provided for in the settlement agreement. Further, she held the position for nearly six years after she entered into the agreement with the Agency. Moreover, the agreement specifically stated that Complainant would not be afforded any special consideration if her position was affected in the future by a RIF or BRAC. Thus, we find that Complainant has not established a breach of the terms of the agreement by the Agency.
Accordingly, the Agency's decision finding that it was not in breach of the agreement is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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 77960, Washington, DC 20013. 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 (S0610)
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 (Z0610)
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 from the Court that the Court appoint an attorney to represent you and that the Court also 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 with the Court 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
September 20, 2012
__________________
Date
1 According to the Agency's brief on appeal, Complainant alleged that she was not given notice in writing and was not informed of the abolishment as early as others had been. Complainant filed a new EEO complaint on these issues which was accepted by the Agency.
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0120122378
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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