01A12260_r
07-26-2001
Tanya W. Jordan, Complainant, v. Donald L. Evans, Secretary, Department of Commerce, Agency.
Tanya W. Jordan v. Department of Commerce
01A12260
July 26, 2001
.
Tanya W. Jordan,
Complainant,
v.
Donald L. Evans,
Secretary,
Department of Commerce,
Agency.
Appeal No. 01A12260
Agency Nos. 96-51-0110, 97-51-0189, 98-51-0069
DECISION
On February 16, 2001, complainant timely appealed to this Commission,
claiming breach of a June 12, 1998 settlement agreement.<1> Complainant
argues that the agency's decision to transfer her to the Office of
Financial Management (OFM), along with the rest of her office, violates
the settlement agreement. According to complainant, she agreed to
the settlement only because it provided for her transfer out of OFM,
and she believed that she would never have to return to OFM absent a
Reduction-in-Force.
The settlement agreement provided, in pertinent part, that the agency
would:
(a) Promote complainant . . . to the position of Accountant GS-14,
step-4, effective the first pay period after December 23, 1997, with
all appropriate back pay, interest and retirement contributions, and
simultaneously reassign Complainant to the position of Management and
Program Analyst, GS-14, in OEBAM [Office of Executive Budgeting and
Assistance Management].
The settlement included provisions addressing complainant's duties,
including:
(a) Upon her promotion from the position of Accountant, GS-510-13 to
Accountant GS-510-14, Office of Financial Policy and Assistance (OFPA),
OFM, [complainant must] accept a simultaneous realignment to the position
of Management and Program Analyst, GS-343-14, OEBAM. . . .
In its final decision, the agency found that complainant's claim of
breach addressed matters outside the scope of the settlement agreement.
It noted that the agreement did not prohibit the agency from transferring
complainant back to OFM. Absent such a term, the agency found that its
plans to move the duties of complainant's office under the direction of
OFM did not violate the settlement agreement. The agency also found that
since complainant had not worked in OFM for two years, it complied with
the agreement. The agency explained that the agreement did not provide
for complainant to remain in her reassigned position indefinitely.
Even if the reassignment caused breach of the agreement, the agency
argued that no breach had occurred. According to the agency, it merely
proposed the realignment in several different forms as part of an office
reorganization, but never obtained the necessary approvals to enact it.
On appeal, complainant asserts that the term �reassignment� means a
permanent position with an unlimited term. Complainant contends that
if the parties intended to allow complainant to stay in the OEBAM for a
limited period of time, then the agreement would have provided complainant
with a �temporary appointment� or a �detail,� not a reassignment.
Further, complainant asserts that the move back to OFM already has
taken effect � she notes that the OFM phone list included her name,
the Director of OBEAM informed complainant that she must report to OFM
rather than him, and she understood that an OFM manager would sign her
performance appraisal.
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 intent of the parties as expressed in the contract,
not some unexpressed intention, 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).
In the instant case, the agreement does not specifically forbid the
agency from returning complainant to OFM. Although complainant has
a right to believe that the reassignment would be permanent, it is
subject to exceptions. See Pyles v. United States Postal Service,
EEOC Request No. 05920044 (April 22, 1992). When the agreement fails
to specify a time period for complainant to remain in a position, the
agency need not retain complainant in that position forever. See Holley
v. Department of Veterans Affairs, EEOC Request No. 05950842 (Nov. 13,
1997) (citations omitted) (agency complied with settlement agreement
when kept claimant in position for four years until changing his duties
through a reorganization). In the present case, complainant was retained
in her current position for approximately two years, and was returned
to OFM pursuant to a reorganization. Under the present circumstances,
the Commission finds that the agency substantially complied with the
settlement agreement.
CONCLUSION
Accordingly, the agency's finding 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).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0900)
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 (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
July 26, 2001
__________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
__________________
Date
______________________________
1The parties argue of whether the appeal was premature. Complainant filed
her appeal on the thirty-fifth day after alleging breach of the agreement.
Therefore, her complaint was not premature. See 29 C.F.R. � 1614.504.
Further, although the agency did not mail its final decision until
February 14, 2001 (and complainant did not receive it until after filing
the instant appeal), it was completed and signed February 5, 2001 -
prior to complainant's appeal.