01A30493_r
07-09-2003
Naomi N. King, Complainant, v. Gale A. Norton, Secretary, Department of the Interior, Agency.
Naomi N. King v. Department of the Interior
01A30493
July 9, 2003
.
Naomi N. King,
Complainant,
v.
Gale A. Norton,
Secretary,
Department of the Interior,
Agency.
Appeal No. 01A30493
DECISION
Complainant filed a timely appeal with this Commission from a final agency
decision dated September 17, 2002, finding that it was in compliance with
the terms of a April 16, 2001 settlement agreement. See 29 C.F.R. �
1614.402; 29 C.F.R. � 1614.504(b); and 29 C.F.R. � 1614.405.
The April 16, 2001 settlement agreement provided, in pertinent part,
that the agency agrees to have:
4(a). [Complainant] list her roles and responsibilities as they apply
to her current position and provide them to the Administrative Officer
(Acting Administrative Officer) and/or [a named Las Cruces Field Manager],
within 30 days after this agreement has been signed by all parties.
This list will include recommendations for hiring work study students
and volunteers;
4(b). Monthly rotation (one office representative each month) for
front desk back-ups to include staff members from the Divisions of
Multi-Resources, Renewable Resources and the Field Manager's Staff.
The Administrative Officer (and/or Acting) will have the responsibility
of preparing and posting the rotation schedule;
..........
4(d). [A named Las Cruces Field Manager] and/or her staff will review
for accuracy, amend, or rewrite all Las Cruces office Division of Support
Services' Position Descriptions to reflect current duties being performed,
and will submit the revised Pds to BLM, NMSO, HRM, for classification
by May 18, 2001.<1>
By letter to the agency dated July 1, 2002, complainant alleged that
the agency breached the settlement agreement, and requested that her
complaint be reinstated. Regarding provision 4(a), complainant alleged
that the agency failed to recommend for hire any work study students
or volunteers to complainant; and that complainant has continued to
perform backup duties for the Accounting Technician, the Mail Clerk,
and her job duties without assistance. Regarding provision 4(b),
complainant alleged that the agency failed to implement the monthly
rotation for the front desk backups by requiring her to perform three
functions at the front desk; and as a result, her responsibilities
have been compromised and her professional standards have been lowered.
Finally, regarding provision 4(d), complainant alleged that the agency
failed to promote her to a GS-6 upon completion and submission of the
updated Position Description (PD) to Human Resources for classification.
In its September 17, 2002 decision, the agency found no breach.
The agency determined that it complied with provision 4(a) by giving
complainant the opportunity to list her roles and responsibilities and
include on that list recommendations for hiring work study students
and volunteers. The agency further determined that there is nothing
in the language of provision 4(a) that provides that it would hire any
students or act upon the recommendations within any specific time period.
Regarding provision 4(b), the agency determined that the Field Manager
issued an All Las Cruces Employees memorandum dated March 15, 2001,
listing the rotation schedule and its purpose. The agency further
determined that the rotation schedule was posted in a three-ring binder at
the front desk and is still in effect. Furthermore, the agency determined
that there is nothing in the language of provision 4(b) that provides
that complainant would serve or not serve as a backup on specific times,
months and/or days. Regarding provision 4(d), the agency determined that
it complied with this term when complainant's PD was submitted to the
HRM on May 16, 2001, classified on July 13, 2001, and approved on May 8,
2002. The agency further determined that complainant was promoted to the
position of Accounting Technician, GS-0525-6, effective July 15, 2001.
Further, the agency determined that there is nothing in the language
of provision 4(d) that provides that complainant would be promoted by
May 18, 2001, but that her PD would be submitted for classification
by May 18, 2001. The agency determined that although complainant's
promotion was not processed until May 8, 2002, that it acted in good
faith by ensuring her promotion was effective immediately after the
classification was completed, through retroactive promotion.
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 O 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).
Provision 4(a)
After a review of the record, we find that the agency did not breach
provision 4(a) of the settlement agreement. Specifically, we find that
the language in provision 4(a) cannot be read as obligating the agency
to hire any work study students or volunteers upon the recommendations
within any specific time period. Consequently, we AFFIRM the agency's
finding of no breach of provision 4(a).
Provision 4(b)
Regarding provision 4(b), we find the agency properly found no breach. We
find the language in provision 4(b) states that the Administrative Officer
(and/or Acting) would prepare and post the monthly rotation schedule (one
office representative each month) for front desk back-ups to include staff
members from the Divisions of Multi-Resources, Renewable Resources and the
Field Manager's Staff. If complainant had intended that provision 4(b)
of the settlement agreement to assign or not assign her as a back-up
on specific times, months and/or days, she should have included such a
provision in the settlement agreement. See Jenkins-Nye v. General Service
Administration, EEOC Appeal No. 01851903 (March 4, 1987). Accordingly,
we AFFIRM the agency's finding of no breach of provision 4(b).
Provision 4(d)
Regarding provision 4(d), we find the agency properly found no breach.
Provision 4(d) states that the Las Cruces Field Manager and/or her
staff is to review for accuracy, amend, or rewrite all Las Cruces office
Division of Support Services' position descriptions (pds) to reflect
current duties being performed, and will submit the revised pds to BLM,
NMSO, HRM, for classification by May 18, 2001. The record contains
complainant's position description dated May 16, 2001, reflecting that
it was submitted to the HRM on May 16, 2001. The record also contains
the Equal Employment Opportunity Manager's letter dated April 25, 2002,
to the State Personnel Officer. Therein, the Equal Employment Opportunity
Manager stated that complainant's position description was reviewed and
classified by the Personnel Management Specialist on July 13, 2001,
as an Accounting Technician, GS-525-6. Further, the record contains
complainant's SF-50 reflecting that her retroactive promotion to the
position of Accounting Technician, GS-525-6, effective July 15, 2001,
was approved by the authorizing official dated May 8, 2002. Accordingly,
we AFFIRM the agency 's finding of no breach of provision 4(d).
Accordingly, the agency's decision finding that it did not breach
provisions 4(a), 4(b), and 4(d) 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
July 9, 2003
__________________
Date
1The settlement agreement also provides for
complainant's Individual Development Plans (IDPs) training research,
and requests for training and/or employee development to be submitted
to the Administrative Officer (or Acting) by close-of-business July
31, 2001, and that the IDPs would be approved by August 14, 2001;
complainant would be given an opportunity to apply for an announcement
for a temporary promotion not-to-exceed one year for the position of
Accounting Technician, GS-525-5, issued and distributed within the Las
Cruces Field Office; and an award of $1,000.00 be issued to complainant
to compensate her for Accounting Technician, GS-525-5 work she performed
during the period of January 14, 2001 to March 31, 2001. These provisions
are not at issue in the instant appeal.