0120081839
08-14-2008
Barbara K. Lettsome, Complainant, v. Pete Geren, Secretary, Department of the Army, Agency.
Barbara K. Lettsome,
Complainant,
v.
Pete Geren,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120081839
Agency No. ARFTMCPH06OCT04255
DECISION
Complainant filed a timely appeal with this Commission from a final
decision (FAD) by the agency dated February 4, 2008, finding that it
was in compliance with the terms of the December 14, 2006, 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.
At the time the parties entered into the settlement agreement, complainant
was a staff actions specialist, GS-9, with the Headquarters U.S. Army
Forces Command, Fort McPherson, Georgia. The settlement agreement
provided, in pertinent part, that:
The Army agrees to initiate a desk audit for [complainant's] duty
position within sixty days from the date all parties sign this Negotiated
Settlement Agreement (NSA). [Complainant] will be given a copy of the
documents submitted by Army for this desk audit.
By letter to the agency dated October 17, 2007, complainant alleged
that the agency was in breach of the settlement agreement. The desk
audit found that complainant's grade level should remain as a GS-9.
Complainant alleged that the desk audit should have been of duties she
previously performed for the Plans & Integration Division (P&I), not her
current duties. She contended this was understood by the parties when
the settlement agreement was signed. She also contended that she was not
given a copy of the documents submitted by the Army for the desk audit,
and later alleged that the agency failed to complete the audit within
60 days, as agreed.
The February 4, 2008 FAD concluded that the agency complied with the
settlement agreement. Citing Office of Personnel Management (OPM)
procedures for desk audits, it found that the desk audit was correctly
based on complainant's current duties, not what she previously performed.
It also found that the agency gave complainant a copy of the documents
it gave the auditor.
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).
In opposition to the appeal, the agency contends in argument that the
P&I Division was abolished in 2006, and complainant ceased performing
those duties by December 6, 2006. Complainant writes on appeal that she
performed P&I duties through December 2006. She also concedes on appeal
that she was given the documents the auditor received, but contends this
was not compliance with the settlement agreement because it occurred
after the audit. The agency submits documentation on appeal that the
desk audit commenced on February 7, 2007, within 60 days of the signing
of the settlement agreement.
We find that the agency complied with the settlement agreement.
It timely initiated and conducted a desk audit, as agreed, and gave
complainant a copy of the documents submitted by Army for the desk audit.
Complainant's arguments that compliance required an audit of duties she
no longer performed, that she be given the documents the agency gave
the auditor before the completion of the audit, and that the audit be
completed within 60 days are not persuasive.
The FAD is affirmed.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0408)
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 (S0408)
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 (Z0408)
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
August 14, 2008
__________________
Date
2
0120081839
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
4
0120081839