01a54248
11-04-2005
Kelly J. Goocher, Complainant, v. Gale A. Norton, Secretary, Department of the Interior (Fish and Wildlife Service), Agency.
Kelly J. Goocher v. Department of the Interior
01A54248
November 4, 2005
.
Kelly J. Goocher,
Complainant,
v.
Gale A. Norton,
Secretary,
Department of the Interior
(Fish and Wildlife Service),
Agency.
Appeal No. 01A54248
DECISION
Complainant filed a timely appeal with this Commission from a final
decision (FAD) by the agency dated April 28, 2005, finding that it was
in compliance with the terms of the August 26, 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.
The settlement agreement provided, in pertinent part, that:
(8) The Claimant [complainant] will complete a draft recovery plan
for the Laguna Mountains skipper, which will be reviewed internally
by [AA], or others as deemed appropriate, and externally by [KO].
This additional review will not delay completion of the draft plan.
Upon completion of the internal draft and incorporation of edits, the plan
will be submitted for approval to the California/Nevada Operations (CNO)
Manager. Upon acceptance of the recovery plan by the CNO Manager, and at
the Claimant's discretion, the Claimant will be afforded an additional
five business days to organize her files and complete any other final
assignments prior to her resignation, but no later than October 30, 2004,
when the complainant will be placed on requested leave to include Leave
Without Pay (LWOP) for a period not to exceed six months. The Claimant
will use all accrued annual leave before she is placed into a LWOP status,
and she will provide the Service any documentation necessary to process
the requested LWOP.
(9) The Claimant agrees to provide the Service, within 14 business days of
the date [the] last settlement signature is secured, a signed letter of
resignation pre-dated to be effective on April 30, 2005. Should she not
acquire employment with any Federal Agency, including other Regions within
the Service, she will resign from her position as a Fish and Wildlife
Biologist, (GS-0401-11), employed with the Carlsbad Fish and Wildlife
Office, CNO. It is also understood that should the Claimant successfully
find employment with any Federal Agency, including other Regions within
the Service, the LWOP shall terminate on the effective date of her new
appointment, regardless of the type, nature or duration of the appointment
or employment. In accordance with the terms of the Settlement Agreement,
the Service will initiate and execute her resignation on April 30, 2005.
By letter to the agency dated March 23, 2005, complainant alleged that
the agency was in breach of the settlement agreement. Complainant stated
that the draft recovery plan was to be submitted and accepted prior to
her October 30, 2004 departure, and contended that the agency had never
intended to comply with the provisions of Paragraph 8. Complainant
further stated that she intended to withdraw her resignation and return
to work on May 2, 2005 if the matter were not resolved before then,
and that the informal complaint underlying this matter be reinstated
for further processing.
In its April 28, 2005 FAD, the agency concluded that it was not
in breach. The agency noted that the draft plan had been reviewed
and accepted per the terms of Paragraph 8. The agency stated that,
contrary to complainant's assertion, the plan need not be reviewed at
the Field Office or Regional Office levels to be �accepted,� only to be
�approved.� The agency noted that �accepted� is an informal term used
to mean that a plan is ready to be submitted for �approval.� The agency
noted that complainant was advised on October 29, 2004 that the draft
recovery plan had been accepted. Further, the agency noted that, per
Paragraph 9, complainant had been placed in leave status on October 30,
2004, and in LWOP status on December 15, 2004, not to exceed April 30,
2005. It therefore determined that no breach had occurred on its part,
and that it would proceed to process complainant's resignation.
EEC 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 Harrington v. Department of Defense,
EEC 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, EEC 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, EEC 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 Engineering Services Co., 730 F.2d 377 (5th Cir. 1984).
In the instant case, review of the terms of Paragraph 8 reveals that it
is the �acceptance� of the draft recovery plan, not its �approval� which
triggers the further rights and obligations of the parties. Once the
plan was �accepted,� complainant had five days to conclude her affairs
before being placed in leave status, with the further agreement that she
would submit a letter of resignation which would become effective not
later than April 30, 2005. It was anticipated by the parties that during
this period complainant would seek and perhaps secure further employment.
That the accepted plan would be submitted for approval was incidental
to the agreement.<1>
Upon review of the record, the Commission finds that the agency is not
in breach of the settlement agreement. Accordingly, the final agency
decision 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
November 4, 2005
__________________
Date1The record reflects that the accepted plan in fact was submitted
to the Regional Office for approval.