01A03642
03-29-2001
Nora R. Matthews v. Department of the Army 01A03642 March 29, 2001 . Nora R. Matthews, Complainant, v. Gregory R. Dahlberg, Acting Secretary, Department of the Army, Agency.
Nora R. Matthews v. Department of the Army
01A03642
March 29, 2001
.
Nora R. Matthews,
Complainant,
v.
Gregory R. Dahlberg,
Acting Secretary,
Department of the Army,
Agency.
Appeal No. 01A03642
Agency No. BQEGFO9812I0660
DECISION
Complainant filed a timely appeal with this Commission from a final
decision by the agency dated March 15, 2000, finding that it was in
compliance with the terms of the April 12, 1999 settlement agreement
into which the parties entered.
The settlement agreement provided, in pertinent part, that:
(3) The [agency] agrees to:
Within 14 calendar days of the date of this agreement, the Complainant
and Management will develop a Job Description which accurately
describes the duties the Complainant has been performing since October
1, 1996 (and to the present) and the level of responsibility required.
Management will determine the points assigned to each factor and if the
total points equate to the GS-13 level, management will submit an SF-52,
Request for Personnel Action, Reaudit, from Technical Writer-Editor,
GS-1083-12, to Technical Writer-Editor, GS-1083-13. If the points
assigned to each factor do not equate to the GS-13 level, Management
agrees to forward the Job Description to CPOC and request that CPOC
reaudit the position. If CPOC does not classify the position at the
GS-13 level, Management will request CPOC provide a written explanation
of how they determined the appropriate grade level.
With classification of the Complainant's position at the GS-13 level,
pay the Complainant the lump sum equivalent to the difference in pay
between GS-1083-12 and GS-1083-13 from October 1, 1996 to the date of
promotion to GS-1083-13. Coordination of this action shall be between
(EEO Complaints Manager) and (Chief of Resource Management for ATTC)
and the [agency].
By letter to the agency dated December 13, 1999, complainant alleged that
the agency was in breach of the settlement agreement, and requested that
the agency specifically implement the terms of the agreement.
In its March 15, 2000 final decision, the agency concluded that it was
in compliance with the terms of the April 12, 1999 settlement agreement.
The agency claimed that management reviewed and revised complainant's
job description and completed the revised position description on April
26, 1999. The agency stated that based upon the point value assigned
to functions performed, the position was rated as a GS-11. The agency
noted that on July 13, 1999, a draft of the revised job description
was presented to complainant for review, however, complainant refused
to accept this document. The agency also noted that on July 14, 1999,
complainant and her representative declined an opportunity to review
and make recommendations regarding the revised draft job description.
The agency stated that on August 24, 1999, the EEO Complaints Manager
issued a memorandum stating that the CPOC agreed with the revised job
description. Thus, the agency concluded that it complied with the terms
of the agreement.
On appeal, complainant states that the April 26, 1999 job description
was inaccurate and instead argues that the original draft job description
prepared in December 1996, by her first- and second-level supervisors was
the correct description of her duties. Complainant claims that the agency
did not actively involve her in drafting the initial job description.
Complainant also claims that the completed job description does not
include the actual duties she performed. Instead, complainant states
that the agency provided a GS-11 job description and grading scale to
CPOC, in an effort to downgrade her position. Complainant states that on
April 26, 1999, when Person A (Commander, Flight Test Directorate, ATTC)
brought her the revised job description for her review, she informed
him of her displeasure with the description but told him to forward
it as written, and she would �pursue it as needed.� Complainant also
states that management intentionally provided a GS-11 job description for
CPOC's review; therefore, the classifier could only rate the position as
a GS-11 based on the information provided. Based on the agency's actions,
complainant requested that her complaint be reinstated for processing.
The regulation set forth at 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 present case, we find that the agency did not comply with the terms
of the April 12, 1999 settlement agreement. The agreement states that
within 14 days of the date of the settlement agreement, complainant and
management will develop a job description which accurately describes the
duties complainant has been performing since October 1, 1996. We find
that the agency has failed to show that complainant participated in the
development of the new job description. The record contains the April
26, 1999 position description which fails to show that the agency relied
on any statements or documents from complainant in developing the job
description. We note that the record contains a letter dated June 8,
1999, from the Commander, Flight Test Directorate, which states that
on three occasions between April 12 - 26, 1999, he and complainant had
brief discussions regarding the development of her job descriptions.
This letter, however, does not indicate that the agency examined the
actual duties performed by complainant from October 1996 through April
1999, or the level of responsibility required for the duties performed
by complainant during this period. Thus, we find that the agency has
not complied with the terms of the April 12, 1999 settlement agreement.
Accordingly, the agency's final decision was improper and is REVERSED and
complainant's complaint is REMANDED for further processing in accordance
with the Order below.
ORDER
The agency is ordered to reinstate complainant's November 23, 1998
complaint from the point processing ceased. The agency shall notify
complainant within fifteen (15) calendar days of the date this decision
becomes final of the reinstatement of her complaint. Thereafter,
the agency shall process the reinstated claims in accordance with 29
C.F.R. � 1614.108. A copy of the agency's notification of reinstatement
to complainant must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0900)
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 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 29 C.F.R. � 1614.409.
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 (R0900)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
March 29, 2001
__________________
Date