Carolyn Gethers, Petitioner,v.Mike Johanns, Secretary, Department of Agriculture, Agency.

Equal Employment Opportunity CommissionJul 20, 2005
01a52657 (E.E.O.C. Jul. 20, 2005)

01a52657

07-20-2005

Carolyn Gethers, Petitioner, v. Mike Johanns, Secretary, Department of Agriculture, Agency.


Carolyn Gethers v. Department of Agriculture

01A52657

July 20, 2005

.

Carolyn Gethers,

Petitioner,

v.

Mike Johanns,

Secretary,

Department of Agriculture,

Agency.

Appeal No. 01A52657

Agency No. 240088

DECISION

The complainant filed a timely appeal with this Commission thirty-five

days after the complainant notified the agency that the complainant

believed that the agency was not in compliance with the terms of the

September 15, 2004 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.

By letter to the agency dated February 18, 2005, the complainant alleged

that the agency breached the agreement provision number 1 when the

agency failed to conduct a neutral, independent classification review

of the complainant's position description. The complainant contends

that it was her expectation that her grade level would be raised and

that management inappropriately provided additional information to the

reviewer that tainted the neutrality of the review. The complainant is

requesting specific performance of the provision by requiring the agency

to conduct another review.

The settlement agreement provided, in pertinent part, that the agency

agrees to have conducted a classification review of the complainant's

current position description by a neutral, independent classifier to

determine the appropriate grade level. The agency did not respond to the

complainant's February 18, 2005 notice of a breach prior to the filing

of this appeal.

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 finds that the settlement agreement is valid and that

the agency has complied with the terms of the agreement, entered by the

parties. In the instant case, the record shows that an outside review was

conducted. Although the complainant references the understanding of the

parties as to how the review would proceed, the terms of the settlement

agreement did not say that the agency was precluded from providing

the reviewer with the title and grade of the complainant's position or

precluded from sharing other sample job descriptions. The settlement

agreement does not require the agency to upgrade the complainant's

position as a result of the review. Accordingly, we affirm the agency's

decision, finding that it had not violated the terms of the agreement.

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 20, 2005

__________________

Date