01992632
06-09-2000
Kim Stanfill-McMillan, Complainant, v. Daniel R. Glickman, Secretary, Department of Agriculture, Agency.
Kim Stanfill-McMillan, )
Complainant, )
)
v. )
) Appeal No. 01992632
Daniel R. Glickman, ) Agency No. 980206
Secretary, )
Department of Agriculture, )
Agency. )
____________________________________)
DECISION
Complainant filed an appeal with this Commission from a final agency
decision (FAD), dated January 6, 1999, finding that it was in compliance
with the terms of the July 5, 1996 settlement agreement into which the
parties entered.<1> See 64 Fed. Reg. 37,644, 37,659, 37,660 (1999)(to
be codified and hereinafter referred to as EEOC Regulation 29 C.F.R. �
1614.402); 29 C.F.R. � 1614.504(b); EEOC Order No. 960, as amended.
The settlement agreement provided, in pertinent part, that:
3.A. To withdraw a directed reassignment dated April 26, 1996, and
subsequent proposal to remove the Complainant.
3.B. To remove the Complainant's name from the current EPS list and
insure that she will not be placed back on this list prior to 6/1/97.
Provided that the Technology Marketing Unit budget in FY 97 (for the
Forest Products Laboratory) does not decline below the FY 96 level to
a point at which this position can not be funded.
3.C. To provide full time employment with [Mr. A, Mr. B. and /or Mr. C]
from 7/8/96, through 9/28/96.
3.D. To assign the Complainant to a Permanent Part Time position
(Engineer, GS-801-11) in the Technology Marketing Unit (25 hr. per week
average) commencing 9/29/96, through 9/27/97.
3.E. To provide the Complainant priority consideration for reassignment
to any Permanent Full and/or Part Time position that becomes available
in the Forest Products Laboratory commuting area, for which she is
qualified and applies, through 9/27/97.
3.F. That if the Complainant's position in the Timber Marketing Unit
becomes unfunded she will receive all rights described in the Master
Agreement, Article 32 and that should she refuse a directed reassignment
as a result, she will be afforded priority consideration for positions
within the Forest Products Laboratory commuting area for a one year
period commencing on the day which she either resigns or is removed
from her position.
By letter to the agency dated December 4, 1997, complainant alleged that
the agency was in breach of the settlement agreement. Specifically,
complainant alleged that the agency breached portion 3.E. when it failed
to give her priority consideration for position FPL-107-97. Complainant
interpreted the phrase �priority consideration� to mean that �one name
would be sent forward, and the only reason for non-selection would be a
deterioration in performance.� Therefore, when the supervisor requested
additional names following complainant's application, complainant
determined that she was denied priority consideration.
The record reflects that the agency admits that it failed to give
complainant priority consideration. In a document dated February 20,
1998 and signed by the Human Resources Director for Forest Products
Laboratory, the agency indicates that complainant applied for a Research
Forest Products Technologist/Plan Pathologist position announced at the
GS-11/12 level. The agency acknowledges that complainant was qualified at
the GS-11 level. However, management understood �priority consideration�
to mean that an individual was given first consideration and if the
supervisor did not select that person, the supervisor could ask to see
all the candidates who applied. Following a December 4, 1997 meeting,
management accepted complainant's interpretation of the term.
Thereafter, on December 16, 1997, complainant was offered a full-time
permanent GS-11 Engineer position in the Timber Marketing Unit.
On January 27, 1998, the agency extended the time limitation for accepting
their offer and noted that it would not raise the position to GS-12
as suggested by complainant. According to the agency, to offer GS-12
would make complainant �more than whole....� Complainant rejected the
agency's offer and requested that her EEO complaint be reinstated.
In its January 6, 1999 FAD, the agency concluded that it was in compliance
with the July 5, 1996 settlement agreement. Specifically, the agency
acknowledged that complainant had not been given priority consideration,
but contended that �to correct the error� it offered her a permanent full
time position of Engineer, GS-801-11 in the TMU. According to the FAD,
the agency's offer was a reassignment, whereas a GS-12 position would
have been a promotion and more than the agreement required.
64 Fed. Reg. 37,644, 37,656 (1999)(to be codified and hereinafter
referred to as 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 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, we find that provision 3.E. of the settlement
agreement dictated an affirmative agency obligation to provide complainant
priority consideration for any position that became available through
September 27, 1997. The agency itself admits that it failed to meet
this obligation, stating in the FAD: �complainant had not received
priority consideration, in that the complainant had to be selected for
the position unless there was a performance or conduct issue� and that
�complainant had qualified for the position at the GS-11 level.� To
the extent that the agency attempted to �correct the error�, by offering
complainant another position, the agency's action did not cure the breach
of the settlement agreement.
Once a breach is found, as in the instant case, the remedial relief
is either the reinstatement of the complaint for further processing or
specific enforcement of the settlement agreement. If a complainant's
complaint is reinstated for further processing, then the parties must
be returned to the status quo at the time that the parties entered
into the settlement agreement, which requires that complainant return
any benefits received pursuant to the settlement agreement. See, e.g.,
Armour v. Department of Defense, EEOC Appeal No. 01965593 (June 24, 1997);
Komiskey v. Department of the Army, EEOC Appeal No. 01955696 (September
5, 1996). In the present case, appellant initially requested that her
complaint be reinstated, but on appeal has requested to be placed into a
PFT position. Consequently, on REMAND complainant shall be advised that
in order to reinstate her complaint, a condition precedent is the return
of any benefits received through the execution of the provisions of the
agreement. In view of this requirement, we therefore give complainant
the option, in accordance with the ORDER below, of either returning
the benefits conferred pursuant to the agreement and reinstating the
complaint, or keeping the benefits conferred pursuant to the agreement
and having the agreement specifically enforced.
ORDER
The agency is ORDERED to notify complainant of her option to return to the
status quo prior to the signing of the settlement agreement and having her
complaint reinstated or having the terms of the agreement specifically
enforced. The agency shall so notify complainant within fifteen (15)
calendar days of the date this decision becomes final. The agency shall
also notify complainant that she has fifteen (15) calendar days from
the date of her receipt of the agency's notice within which to notify
the agency of her choice. Complainant shall be notified that in order
to return to the status quo ante, she must return any benefits received
pursuant to the agreement. The agency shall determine any payment due
complainant, or return of consideration or benefits due from appellant,
within thirty (30) calendar days of the date this decision becomes final,
and shall include such information in the notice to complainant.
If complainant elects to return to the status quo ante and she returns
any monies or benefits owing to the agency, as specified above, the
agency shall resume processing complainant's complaint from the point
processing ceased pursuant to 64 Fed. Reg. 37,644, 37656 (1999) (to
be codified and hereinafter referred to as EEOC Regulation 29 C.F.R. �
1614.108 et seq). If complainant elects not to return to the status quo
ante, i.e., not to return any consideration owing the agency, the agency
shall notify complainant that the terms of the settlement agreement will
be specifically enforced.
A copy of the agency's notice to complainant regarding her options,
including the determination of consideration due or owing, as well
as a copy of either the correspondence reinstating the complaint for
processing or the correspondence notifying complainant that the terms
of the agreement will be specifically enforced, must be sent to the
Compliance officer, as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K1199)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to the
complainant. If the agency does not comply with the Commission's order,
the complainant may petition the Commission for enforcement of the order.
29 C.F.R. � 1614.503(a). The complainant also has the right to file a
civil action to enforce compliance with the Commission's order prior
to or following an administrative petition for enforcement. See 64
Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. �� 1614.407, 1614.408), and 29 C.F.R. �
1614.503(g). Alternatively, the complainant has the right to file a
civil action on the underlying complaint in accordance with the paragraph
below entitled "Right to File A Civil Action." 29 C.F.R. �� 1614.407
and 1614.408. A civil action for enforcement or a civil action on the
underlying complaint is subject to the deadline stated in 42 U.S.C. �
2000e-16(c)(Supp. V 1993). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 64 Fed. Reg. 37,644, 37,659 (1999)
(to be codified and hereinafter referred to as 29 C.F.R. � 1614.409).
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION
(R0400)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court WITHIN NINETY (90) CALENDAR DAYS from the date
that you receive this decision. In the alternative, you may file a
civil action AFTER ONE HUNDRED AND EIGHTY (180) CALENDAR DAYS of the date
you filed your complaint with the agency, or filed your appeal with the
Commission. 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. 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:
June 9, 2000
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_______________ __________________________
Date 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 64 Fed. Reg. 37,644 (1999), where
applicable, in deciding the present appeal. The regulations, as amended,
may also be found at the Commission's website at WWW.EEOC.GOV.