Carol A. Ruleman, Complainant,v.R. James Nicholson, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionDec 17, 2007
0120073633 (E.E.O.C. Dec. 17, 2007)

0120073633

12-17-2007

Carol A. Ruleman, Complainant, v. R. James Nicholson, Secretary, Department of Veterans Affairs, Agency.


Carol A. Ruleman,

Complainant,

v.

R. James Nicholson,

Secretary,

Department of Veterans Affairs,

Agency.

Appeal No. 0120073633

Agency No. 2004-0517-2006100899

DECISION

Complainant filed a timely appeal with this Commission from a letter of determination by the agency dated September 4, 2007, finding that it was in compliance with the terms of an April 20, 2007 settlement agreement. See 29 C.F.R. � 1614.402; 29 C.F.R. � 1614.504(b); and 29 C.F.R. � 1614.405.

The April 20, 2007 settlement agreement provided, in pertinent part, that the agency agrees:

6. To have a desk audit of Complainant's current position performed by a qualified VA employee not working for the Beckley VA Medical Center. The Agency will provide the names and background information of three qualified individuals from VISN to Complainant within thirty (30) days of the effective date of this agreement. Complainant will select one of the three VA employees to perform the desk audit and notify the Agency of her selection within fifteen (15) days of her receipt of the three names.

7. The VA desk audit will be conducted pursuant to classification procedures used by the VA. Said procedures include interviewing employees and reviewing documentation. If the audit discloses that Complainant's position is classified at a higher-grade pay, then the Agency will effectuate all paperwork necessary to change her grade and pay within thirty (30) days of completion of the desk audit. If the Complainant is not satisfied with the results of the VA audit, she may appeal the classification of her position to OPM. Otherwise, the results of the VA audit will be adhered to by the Agency.

During the pendency of an appeal to OPM, the Agency agrees to permit Complainant to remain at her current grade. The Agency will adhere to OPM's decision on Complainant's grade and pay.

8. To change the title of Complainant's current position from Secretary to Program Support Assistant. Complainant understands and agrees that the duties of her current position have not and will not change as a result of this change in title. The change in Complainant's title will be completed within thirty (30) days of the effective date of this agreement.1

The record reflects that following the execution of the settlement agreement, the agency provided complainant a list of names and qualifications of three identified agency employees from VISN for ranking. On May 9, 2007, complainant informed the agency of her preference regarding who should conduct the desk audit. Following a desk audit of complainant's position, the auditor found that based on the information provided and evaluated, complainant's current Title, Series and Grade should be Secretary (OA), GS-0318-05 instead of Secretary (OA), GS-318-07. The record reflects that although the results of the desk audit indicated that complainant's position should be downgraded, the agency has not taken any action to downgrade her position, during the pendency of an appeal to the Office of Personnel Management.

By letter to the agency dated June 29, 2007, complainant, through her attorney, claimed breach. Specifically, complainant claimed that the settlement agreement "does not discuss nor permit the agency to write a new position description for [complainant]. However, the agency recently gave [complainant] a new position description at a lower grade with different duties following the desk audit."

The agency sent a letter dated July 25, 2007 to complainant requesting additional information concerning breach claims. By letter dated August 9, 2007, complainant declined to respond to the agency's request, stating that according to 29 C.F.R. � 1614.504, she was not required to provide such information. Complainant also claimed that "many of the agency's questions themselves [were] either impertinent or unanswerable."

In its September 4, 2007 letter of determination, the agency found no breach. Specifically, the agency stated that in regard to provision 6, management submitted a list of names and qualified individuals from VISN to complainant on April 20, 2007. Complainant responded with her preferences as to who should conduct the desk audit.

Regarding provision 7, the agency stated that following the findings of the June 13, 2007 audit, the auditor determined that complainant's position should be downgraded to Secretary (OA), GS-0318-05. The agency further stated that although complainant may have expected her position to be upgraded, the agreement did not guarantee the favorable result of the desk audit. Regarding provision 7, the agency stated that a reading of this provision implies that the desk audit may not be favorable to complainant and provides her with the opportunity to appeal the classification of her position to the OPM if she was not satisfied with the results of the audit. The agency stated that according to management, no action would be taken until a final decision is issued by OPM.

Regarding provision 8, the agency stated that the results of the desk audit did not warrant an official title change. Specifically, the agency stated that according to the desk audit, complainant's position was classified as Secretary (OA), GS-0318-05, and that an official title change cannot be changed pursuant to agency classification guidelines.

On appeal, complainant contends that the agency breached provision 8 of the instant settlement agreement when it "issued a position description that removed duties, changed appellant's duties position to a lower-graded position, and refused to officially change her title as explicitly required by the Agreement." Complainant states that on May 18, 2007, she received an email from the Director of the Beckley VA Medical Center stating "[E]ffective immediately [complainant's] position title will be 'Program Support Assistant'... [t]his title change does not effect [sic] her duties of her current position nor will affect other official documents directed by [Office of Personnel Management ('OPM')] law."2 Complainant states, however, that the agency breached provision 8 when it failed to officially change her position title to Program Support Assistant. Complainant states that "even though the results of the classification mandate the title of Secretary, appellant is entitled to an official title change to Program Support Assistant regardless of the results of the classification." Finally, complainant requests that the Commission order the agency to conduct a new desk audit "because it failed to provide all documentation and notes with respect to its reclassification of Appellant's position."

In response, the agency contends that initially it did not fully understand complainant's breach claims until it received her appellate brief which clarified her position. The agency stated although complainant had no issues with provisions 6 and 7, she was seeking to enforce provision 8 as if it were the sole term of the agreement. The agency notes that while complainant was hopeful that a desk audit would result in the upgrade of her position, all parties nevertheless understood that the audit could also result in a downgrade, or no change. The agency asserts that according to the auditor of the desk audit, both complainant and her supervisor agreed that complainant's position description accurately stated her duties, and the audit revealed that complainant's position should be downgraded to Secretary, GS-0318-05. The agency appears to argue that, given this circumstance, provision 8 should be viewed as "not the only term in the agreement, and it must be construed together with all of the other terms of the agreement."

As a threshold matter, complainant initially claimed the agency breached provisions 6, 7 and 8 of the agreement, and later stated she was only claiming the agency breached provision 8. However, since the agency found no breach of provisions 6, 7 and 8, we will address all of them in the instant case.

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).

Provision 6

The Commission finds that complainant has failed to show agency breach concerning provision 6. Provision 6 requires the agency to have a desk audit of complainant's current position performed by a qualified agency employee not working for the Beckley Medical Center; and to provide complainant a list of names and background information on three qualified individuals from VISN within thirty days of effective date of the agreement. The record reflects that on April 20, 2007, the agency provided complainant a list of names and background information on three qualified individuals from VISN. The record reflects that on May 9, 2007, complainant informed the agency of her preference of who should conduct the desk audit. The Commission finds the agency complied with provision 6 of the settlement agreement.

The agency further stated that although complainant may have expected her position to be upgraded, the agreement did not guarantee the result of the desk audit. Regarding provision 7, the agency stated that a reading of this provision implies that the desk audit may not be favorable to complainant and provides her with the opportunity to appeal the classification of her position to the OPM if she was not satisfied with the results of the audit. The agency stated that according to management, no action would be taken until a final decision is issued by OPM.

Provision 7

Complainant has failed to show agency breach concerning provision 7. Provision 7 requires the agency to have a desk audit of complainant's position be conducted pursuant to classification procedures; and that if the audit indicates that complainant's position is classified at a higher-grade pay, then the agency would effectuate all paperwork necessary to change her grade and pay within thirty days of completion of the desk audit. The provision also provides that if complainant is not satisfied with the results of the audit, she may appeal. The record reflects that on June 13, 2007 the selected auditor conducted a desk audit of complainant's position. In her findings, the auditor determined that complainant's position should be downgraded to Secretary (OA), GS-0318-05. The record reflects that because the findings of the audit indicated that complainant's position should be downgraded, the agency did not effectuate any paperwork to change her current grade and pay to a higher-grade pay.

Provision 8

Here, provision 8 requires the agency "to change the title of Complainant's current position from Secretary to Program Support Assistant. Complainant understands and agrees that the duties of her current position have not and will not change as a result of this change in title." In its final decision, the agency concluded that based on the auditor's finding that complainant's position should be downgraded, it was not possible to change complainant's title from Secretary to Program Support Assistant while allowing her current duties to remain the same, and that such an action would be a violation of the classification guidelines. We note that there is no documentary evidence reflecting that changing complainant's title would be a violation of the classification guidelines. Moreover, provision 8 makes no reference to the other provisions of the subject settlement agreement. Based on the foregoing, we find that the agency breached provision 8 by failing to change the title of complainant's current position from Secretary to Program Support Assistant. To remedy a finding of breach, the Commission may order reinstatement of the underlying complaint, or enforcement of the agreement's terms. See 29 C.F.R. � 1614.504(c). We find that enforcing the agreement's terms regarding changing complainant's title is the appropriate remedy in this case.

Accordingly, the Commission AFFIRMS the agency's finding of no breach of provisions 6 - 7. We REVERSE the agency's finding of no breach of provision 8 and REMAND this matter so that the agency can undertake remedial action in accordance with the ORDER below.

ORDER

The agency is ORDERED to implement the terms of provision 8 of the settlement agreement by undertaking the following action:

Within fifteen (15) calendar days after the date this decision becomes final, the agency shall change the title of complainant's current position from Secretary to Program Support Assistant.

The agency is further directed to submit a report of compliance, as provided in the "Implementation of the Commission's Decision." The report shall include all supporting documentation verifying that the corrective action has been implemented.

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 (T0900)

This decision affirms the agency's final decision/action in part, but it also requires the agency to continue its administrative processing of a portion of your complaint. 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 on both that portion of your complaint which the Commission has affirmed and that portion of the complaint which has been remanded for continued administrative processing. 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 your appeal with the Commission, until such time as the agency issues its final decision on your complaint. 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

December 17, 2007

__________________

Date

1 The settlement agreement also provides for the agency to remove and destroy the following documents from complainant's Official Personnel File: a memorandum dated November 28, 2005, a memorandum dated November 30, 2005, and Elements 1, 2 and 5 of complainant's June 12, 2005 - September 30, 2005 performance appraisal; pay complainant $400.00 for medical expenses; restore up to 24 hours of annual leave and 48.5 sick leave; change the title of complainant's current position from Secretary to Program Support Assistant; and pay $4,500.00 in attorney's fees.

2 The record does not contain a copy of the Director's email dated May 18, 2007 to complainant.

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0120073633

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P. O. Box 19848

Washington, D.C. 20036

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0120073633