01a42362_r
09-28-2004
Edna J. Rodriguez, Complainant, v. Spencer Abraham, Secretary, Department of Energy, Agency.
Edna J. Rodriguez v. Department of Energy
01A42362
September 28, 2004
.
Edna J. Rodriguez,
Complainant,
v.
Spencer Abraham,
Secretary,
Department of Energy,
Agency.
Appeal No. 01A42362
Agency Nos. 2007/IG, 00(94)IG, 03(006)IG
Hearing Nos. 350-A0-8295X, 350-A1-8151X, 320-A3-8443X
DECISION
Upon review, the Commission finds that the agency's decision not to
reinstate complainant's complaints of unlawful employment discrimination
that the parties had settled is proper. See 29 C.F.R. � 1614.504.
On July 17, 2003, the parties entered into a settlement agreement
resolving the complaints. The settlement agreement provided, in pertinent
part, that:
a. The Agency will remove the performance element entitled �Working
Relationships.� The Complainant acknowledges that this performance
element will be added into her performance plan if it is also implemented
in the performance plans of the other administrative staff in the Office
of Audit Services.
The Agency will expunge the Complainant's Official Personnel File
and all Agency records of the one-day suspension dated August 4, 2000.
The Agency will also pay the Complainant the backpay that was lost during
the one-day suspension within thirty days of the date of settlement.
The Agency agrees that it shall not retaliate against Complainant for
engaging in protected EEO activity.
The Agency and Complainant understand that the current Position
Description of the administrative staff within the Office of Inspector
General, Office of Audit Services, are presently under review. The Agency
agrees to complete its revisions to the Position Descriptions within a
reasonable time period, not to exceed sixty days.
On August 18, 2003, complainant alleged that the agency breached the
settlement agreement. Complainant also indicated that she was subjected
to further discrimination after the settlement agreement concerning her
workload, performance rating, and working conditions. On January 15,
2004, the agency issued its response stating that it complied with the
terms of the settlement agreement.
The Commission has held that settlement agreements are contracts between
the complainant and the agency and it is the intent of the parties
as expressed in the contract, and not some unexpressed intention, that
controls the contract's construction. Eggleston v. Department of Veterans
Affairs, EEOC Request No. 05900795 (August 23, 1990). In addition, the
Commission generally follows the rule that if a 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 v. Building Engineering Services,
730 F.2d 377 (5th Cir. 1984).
With regard to provision 3a of the settlement agreement, the record
contains complainant's supervisor's affidavit stating that she deleted
the performance element entitled �Working Relationship� at issue.
The agency submitted a copy of complainant's revised performance standards
reflecting that deletion. The supervisor also stated that the position
descriptions of administrative staff within the Office of Audit Services
were reviewed and the Working Relationships element was added back to
their performance standards.
With regard to provision 3b, the record indicates that the agency canceled
complainant's one-day suspension at issue. The record contains a copy
of complainant's payroll register showing that she was paid for full 80
hours of work for that pay period in question and that no deduction was
made from her pay for that suspension.
With regard to provision 3d, complainant acknowledged that her supervisor
gave her the revised Position Description. Complainant, however,
claimed that the revised Position Description required her to continue
doing the work of other employees.
Based on the foregoing, the Commission finds that the agency did
not breach the terms of the settlement agreement. Specifically,
the Commission finds that complainant's claim concerning her revised
Position Description is beyond the scope of the settlement agreement.
In addition, the Commission notes that the agency properly advised
complainant to contact an EEO Counselor pursuant to 29 C.F.R. � 1614.105,
so that her claims of subsequent acts of discrimination, i.e., concerning
her heavy workload, low performance rating, and working conditions,
can be processed as a separate complaint of discrimination pursuant to
� 1614.106. See 29 C.F.R. � 1614.504(c).
Accordingly, the agency's decision finding no settlement breach 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
September 28, 2004
__________________
Date