01a54966r
11-23-2005
Donzetta T. Lindsay, Complainant, v. R. James Nicholson, Secretary, Department of Veterans Affairs, Agency.
Donzetta T. Lindsay v. Department of Veterans Affairs
01A54966
November 23, 2005
.
Donzetta T. Lindsay,
Complainant,
v.
R. James Nicholson,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A54966
Agency No. 2001-0319
DECISION
Complainant filed a timely appeal with this Commission from a final
decision (FAD) by the agency dated August 3, 2005, finding that it was
in compliance with the terms of the May 19, 2005 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.
The settlement agreement provided, in pertinent part, that the agency
will:
2a. Promote the Complainant from a GS-11, Step 5 to a GS-12, Step 1,
as a Veteran
Service Representative with the Appeals Team, effective May 16,
2003.
By letter to the agency dated July 8, 2005, complainant alleged that
the agency breached provision 2a of the settlement agreement when it
reassigned her to the Post Team. Complainant further alleged that the
agency's action constituted reprisal for EEO activity.
In its August 3, 2005 FAD, the agency concluded that it had not breached
the agreement. The FAD reasoned that it complied with provision 2a by
promoting complainant to the position of Veterans Service Representative
with the Appeals Team on May 18, 2003. The FAD further concluded that
in order to improve the low ranking of the Columbia VA Regional Office,
the agency decided to relieve the Appeals Team of its duties promulgating
awards for the appeal cases, which necessitated changes in personnel
assignments, including the need for complainant to move from the Appeals
Team to the Post Team. The agency concluded that the terms of the
agreement did not preclude it from moving complainant from the Appeal
Team under these circumstances.
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 the instant case, complainant alleges that the agency breached
provision 2a when it reassigned her from the Appeals Team to the Post
Team. Provision 2a provided that effective May 16, 2003, the agency would
assign complainant to Veteran Service Representative, GS-12, Step 1, with
the Appeals Team. The record reveals and complainant acknowledges that
the agency promoted her to the promised position effective May 16, 2003.
Complainant objects to her reassignment from the Appeals Team to the Post
Team on July 13, 2005. The Commission has held that where an individual
bargains for an assignment without any specific terms as to the length of
service, it would be improper to interpret the reasonable intentions of
the parties to include employment in that exact position ad infinitum.
See Holley v. Department of Veterans Affairs, EEOC Request No. 05950842
(November 13, 1997). The Commission has also held that there is no breach
of a settlement agreement "where an individual has been assigned to a
position pursuant to a settlement agreement, has held the position for a
period of time, and then is excised out of the position because of agency
downsizing that was not anticipated at the time of the agreement." Gish
v. Department of the Army, EEOC Appeal No. 01950923 (August 14, 1995).
The Commission notes that the agreement does not specify the duration of
complainant's assignment to the Appeals Team. Further, there is nothing
in the record indicating that the parties knew, or should have known,
about the subsequent need for a change in team personnel assignments at
the time the agreement was executed. We find that the settlement language
does not entitle complainant to remain on the Appeals Team in perpetuity.
Therefore, the Commission finds that the settlement agreement was not
breached when, two years after the agreement was executed and complainant
was promoted on the Appeals Team, complainant was assigned to another
team.
Complainant also contends that the agency engaged in further acts of
discrimination and reprisal. We have held that claims of discrimination
and reprisal should be processed as a new, separate complaint, rather than
as a breach allegation. See Bindal v. Department of Veterans Affairs,
EEOC Request No. 05900225 (August 9, 1990). Therefore, complainant
should raise her reprisal claim as a new, separate EEO claim, if she has
not already done so. Accordingly, the agency's decision was proper and
is hereby 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
_November 23, 2005____________
Date