01992807
11-09-2000
Gail M. White Complainant, v. Louis Caldera, Secretary, Department of the Army, Agency.
Gail M. White v. Department of the Army
01992807
November 9, 2000
.
Gail M. White
Complainant,
v.
Louis Caldera,
Secretary,
Department of the Army,
Agency.
Appeal No. 01992807
Agency Nos.BQECF09508F0104
BQECF09703H0120
BQECF09708H0230
DECISION
Complainant filed a timely appeal with this Commission from a final
decision (FAD) by the agency dated January 19, 1999, finding that it was
in compliance with the terms of the Settlement Agreement dated January
29, 1998 into which the parties entered.<1> 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:
[Section] 5.
f. To ensure that within a period of time not to exceed six (6) months,
the following will occur: that the Director, Directorate of Community
Activities (DCA), will submit for classification and grading to the Chief,
Position Management & Classification Division, Directorate of Civilian
Personnel, his recommendation for a promotion of the complainant's
position within DCA to GS-07; that the Chief, Position Management &
Classification Division, DCP, will submit the classification advisory and
DCA's recommendation to the installation's Position Management Review
Board; that the Board will render its recommendation and the final
decision of the installation commander or his designee in accordance
with applicable civilian personnel rules and local policy.
g. If the recommendation to upgrade [complainant's] position within DCA
is approved, the Agency agrees that the upgrade shall be permanent.
h. If the recommendation to upgrade [complainant's] position in DCA is
not approved, the Director, DCA, shall have the opportunity to resubmit
his recommendation to the Position Management Review Board.
6. [Complainant], agrees to the following:
c. [Complainant] agrees that this agreement does not represent a
guarantee or a promise on the part of the Agency that the Position
Management Review Board or the Installation Commander will approve
the recommendation to upgrade her position within DCA.
By letter to the agency dated September 9, 1998, complainant alleged
that the agency was in breach of the settlement agreement, and requested
that the agency implement its terms. Specifically, the complainant
alleged that the agency failed to upgrade her position to a Management
Assistant GS-7 within six months of the date of the settlement agreement.
She further contends that the Directorate of Civilian Personnel (DCP)
determined that her position should be classified as a GS-7 Management
Assistant and that having determined this, she should be promoted on a
permanent basis.
In its final decision dated January 19, 1999, the agency denied that a
breach of the settlement agreement had occurred. The agency concluded
that although DCP had submitted its recommendation that the promotion
be approved, the Position Management Review Board did not approve the
promotion but recommended to the Deputy Commanding General that the
complainant be retained in her current position, Secretary (Office
Automation) GS-318-06. The agency further concluded that although it
did not meet the time requirements of the settlement agreement, it was
in substantial compliance and that the complainant did not show how she
had been harmed by the delay.
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 determining the intent of the parties, the
Commission has generally relied on the plain meaning rule. See Hyon
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, the settlement agreement at paragraph 5f. clearly
indicates that the Position Management Review Board (Board) was
charged with the decision whether to approve the complainant for
a permanent promotion. The Director for Community Activities (DCA)
along with the Director of Civilian Personnel, were required to make the
recommendation that the complainant be promoted to the Board. The record
indicates the DCA as well as the Director for Civilian Personnel made
the recommendation, but that the Position Management Review Board did
not approve the complainant for a promotion. The Board's approval was
necessary for the complainant's promotion to become permanent. Therefore,
the complainant's contention that the approval of her promotion by the
Director for Civilian Personnel should result in a permanent promotion,
is not correct and not a fair reading of the plain language of parties'
settlement agreement.
The complainant's contends that the agency failed to meet the time
requirements of their agreement and was in breach of the agreement.
Although the complainant has demonstrated the agency technically
breached the agreement , we find the agency fulfilled its obligations
within 3 months of the time compliance was required and as such there
was substantial compliance with the agreement. See Baron v. Department
of Treasury, EEOC Request No. 05930277 (September 30, 1993) (Technical
breach of time requirement but agency fulfilled its material obligations
and no finding of breach). The agency fulfilled its obligation to
submit the complainant's documentation in support of a recommendation
for a permanent promotion to the appropriate decision-making body.
The complainant failed to show that the agency's failure to comply with
the time requirements affected the complainant's chances of promotion
or otherwise materially affected the terms of the settlement agreement.
See Ramirez v. United States Postal Service, EEOC Request No. 05930283
(August 12, 1993) (a breach which did not alter the purpose or effect of
the parties settlement agreement was found to be substantial compliance).
CONCLUSION
For the reasons stated above and based on the record as a whole, the
Commission concludes the agency's final decision that the parties'
settlement agreement was not breached, was correct and is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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:
11/9/00
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
1On November 9, 1999, revised
regulations governing the EEOC's federal sector complaint process
went into effect. These regulations apply to all federal sector
EEO complaints pending at any stage in the administrative process.
Consequently, the Commission will apply the revised regulations found at
29 C.F.R. Part 1614 in deciding the present appeal. The regulations, as
amended, may also be found at the Commission's website at www.eeoc.gov.