01A12393_r
06-07-2002
Lucille Monko, Complainant, v. Thomas E. White, Secretary, Department of the Army, Agency.
Lucille Monko v. Department of the Army
01A12393
June 7, 2002
.
Lucille Monko,
Complainant,
v.
Thomas E. White,
Secretary,
Department of the Army,
Agency.
Appeal No. 01A12393
Agency No. FO0006A0200
DECISION
Complainant filed a timely appeal with this Commission regarding an
agency determination that it was in compliance with the terms of an
October 25, 2000 settlement agreement. 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:
(3.01) Restoration of Leave. The agency will conduct an audit of
the complainant's annual and sick leave accounts to ensure that
leave previously taken in connection with the birth of her child and
permanent change of station (PCS) was charged to the proper leave
account in accordance with law, rule or regulation. The agency will
restore leave where circumstances indicate annual or sick leave or leave
without pay was improperly charged. More specifically, the agency will
retroactively approve and implement the Complainant's leave request
as set forth in [her] April 8, 1999 e-mail, effective June 1, 1999,
and make all necessary adjustments to the appropriate leave accounts.
The agency also will restore 8 hours annual leave to the complainant's
annual leave account for the 8 hours of PCS-related administrative leave
(excused absence) previously denied. In addition, the agency will audit
the complainant's time records for the period July 20, 1998 to February
13, 2000, to determine whether charges to leave on particular dates were
in fact made on days the Complainant was absent from work and will make
whatever adjustments are indicated;
(3.02) Priority Consideration. The agency will give the Complainant
priority consideration for the next available position she applies for
and for which she is fully qualified. For purposes of this agreement,
�priority consideration� shall mean (a) that the selecting official
is to give the Complainant bona fide consideration for the position
vacancy before any other candidate may be referred for consideration, (b)
will not consider the Complainant in competition with other candidates
and (c) will not compare the Complainant to other candidates. In the
event the selecting official does not select the Complainant, before any
other candidates may be referred or considered, the non-selection of the
Complainant shall be reviewed by the Civilian Personnel Advisory Center
and Office of Equal Employment Opportunity and shall be approved by the
Deputy Commander of the Agency. In the event of her non-selection,
the Complainant reserves the right to pursue enforcement action in
accordance with section 3.09; (emphasis in original).
(3.03) Vacancy Announcements. The agency may not fill any traffic
management series 2130, transportation specialist series 2101 GS-12
positions unless and until the positions have been advertised.
The Agency has plans to fill one traffic management series 2130 and
one transportation specialist series 2102 positions imminently but in
no event will the vacancy announcement be later than 90 days from the
date of this agreement. On information and belief, the Complainant
is qualified for traffic management series 2130 and transportation
specialist series 2101 GS-12 positions.
By letter to the agency dated January 17, 2001, complainant alleged
that the agency breached the settlement agreement, and requested that
the agency specifically implement its terms by retroactively promoting
her to a GS-2130-12 Traffic Management Specialist position in the CONUS
Traffic Management, Traffic Planning Division; by auditing and restoring
her leave; and by paying her reasonable attorney fees. Specifically,
complainant alleged that the agency breached the agreement when it:
Filled vacancies at the GS-12 grade in the 2130/2101 series with
preexisting agency employees without advertising the positions
or providing complainant with the opportunity to use her priority
consideration status. The vacancies include the positions of Traffic
Management Specialist, GS-213�12 in OCONUS Customer Service filled
around February 12, 2001; Traffic Management Specialist in Readiness,
Mobilization and Reserve Affairs filled in December 2000; and Traffic
Management Specialist, GS-2130-12, in CONUS Traffic Management, Traffic
Planning Division effected December 3, 2000; and
Failed to audit complainant's sick leave account and restore leave
in circumstances where leave was improperly charged as required by
the agreement.
In its response dated January 18, 2001, the agency concluded that it
afforded complainant the opportunity to apply for three vacancies
for which she would have received priority consideration, but that
complainant failed to apply. Further, the agency admitted that it
had not yet conducted an audit of complainant's time records but would
immediately conduct the audit as prescribed by the agreement.
On appeal, complainant reiterates her contention that the agency
breached the agreement by filling vacancies without offering her priority
consideration and failing to audit her leave record.
In response, the agency contends on appeal that it did not breach the
agreement because its reassignment of other employees to other positions
within the agency commenced before the date of the settlement agreement.
The agency maintains that the agreement does not preclude this type
of reassignment of employees to positions within the same grades as
part of a reorganization plan. Further, the complainant notes that
it granted complainant priority consideration and promotion to the
position of Transportation Management specialist, GS-2130-12, in the
Negotiations and Tender Division of DCSOPS CONUS Traffic Management.
Finally, the agency contends that it performed the audit for the time
period specified in the agreement and consequently adjusted complainant's
leave account as warranted.
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).
Claim One
Upon review, the Commission finds that the agency did not breach
Provisions 3.02 and 3.03 of the agreement when it reassigned three
employees to other positions. A fair reading of the settlement agreement
provides that a position created as part of an agency reorganization is
not construed as a �vacancy� or �next available position� as identified
in the settlement agreement. Moreover, the Commission notes that the
agency thereafter granted complainant priority consideration and promotion
to the position of Transportation Management specialist, GS-2130-12, in
the Negotiations and Tender Division of DCSOPS CONUS Traffic Management,
satisfying its obligation under Provisions 3.02 and 3.03. Consequently,
we find no breach of Provisions 3.02 and 3.03.
Claim Two
The record reflects that the Office of the Deputy Chief of Staff Resource
Management conducted an audit of complainant's leave records for the
period of July 20, 1998 through February 13, 2000. As a result, the
agency (a) credited eight hours of administrative leave to complainant
that were previously charged as annual leave and (b) approved and recorded
two months sick leave and one month of annual leave for complainant,
as requested in complainant's June 1, 1998 email. A fair reading of the
settlement agreement reflects that complainant was to receive specific
leave record adjustments as identified above; however, the settlement
agreement provides no additional guarantees regarding the outcome of
the audit. Therefore, we find that the agency complied with the terms
of the agreement by undertaking a good faith audit of complainant's
leave records for the specified time period and making the two specified
adjustments mandated by the agreement. To the extent that the agency
breached the settlement agreement by not yet having conducted an audit at
the time that complainant alleged breach in January 2001, the Commission
determines that any such breach has been cured. Consequently, we find
no breach of Provision 3.01.
Accordingly, the agency's finding of no breach of the settlement agreement
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
June 7, 2002
__________________
Date