Ozetta Thomas, Complainant,v.Ann M. Veneman, Secretary, Department of Agriculture, Agency.

Equal Employment Opportunity CommissionOct 23, 2003
01A31795_r (E.E.O.C. Oct. 23, 2003)

01A31795_r

10-23-2003

Ozetta Thomas, Complainant, v. Ann M. Veneman, Secretary, Department of Agriculture, Agency.


Ozetta Thomas v. Department of Agriculture

01A31795

October 23, 2003

.

Ozetta Thomas,

Complainant,

v.

Ann M. Veneman,

Secretary,

Department of Agriculture,

Agency.

Appeal No. 01A31795

Agency No. AL-01-001E

DECISION

Complainant filed a timely appeal with this Commission from a final

decision by the agency dated December 23, 2002, finding that it was in

compliance with the terms of the December 5, 2001 settlement agreement

into which the parties entered.

The settlement agreement provided, in pertinent part, that:

The agency agrees to:

(1) Detail the complainant to the Civil Rights and Small Business

Utilization Staff, a Program Complaints Branch in Montgomery, Alabama,

effective December 16, 2001, as a Program Complaint Specialist,

GS-301-13. The duration of the detail to be effective through January

4, 2003 to return to her former position effective January 5, 2003.

The State Executive Director will process the SF-52 within (10) ten

days of the signing of this agreement.

(2) Pay the complainant the sum of $1,500 (one thousand five hundred

dollars). The parties agree that this sum represents a total and

complete settlement of all money issues payable to the complainant or

to her attorney in this matter. The State Executive Director agrees

to process the payment of attorney fees within 30 days of receipt of

the detailed bill.

(3) Grant the complainant a Within-Grade-Increase from a Supervisory

Program Specialist GS-1145-13/6 to a GS-1145-13/7 with an effective

date of January 13, 2002. The State Executive Director will process

the SF-52 within ten (10) days of the signing of this agreement.

(4) Expunge all references in all records maintained by the Agency

of the performance related matters concerning the complainant since

May 21, 2001. Remove the Opportunity to Improve dated November 6,

2001 and replace the Performance Work Plan dated November 6, 2001,

with a Performance Work Plan rating of achieved in all performance

plan elements.

Place the complainant on paid administrative leave effective December 6,

2001 through December 15, 2001.

(B) Both parties agree:

To respect the privacy rights of all individuals involved in the matter.

The fact that the case was voluntarily resolved in a manner acceptable

to both sides may be communicated to others. Explicit terms of the

agreement will not be discussed with, disclosed or released to anyone

who does not need the information to implement the agreement, without

the express permission of the other party.

To cooperate and communicate in good faith in complete implementation

of this agreement and to abide by the terms of this agreement.

That after the agreement is fully implemented, the Agency will within 30

calendar days, provide the complainant with a written notice explaining

the specific actions taken to implement the agreement . . . .

That if the terms of this agreement are not carried out, through no

fault of the Complainant, the Complainant may request enforcement of

the terms of the agreement, or that the complaint be reinstated at

the point at which it was closed by this agreement . . . .

By letter to the agency dated January 11, 2002, complainant alleged that

the agency was in breach of the settlement agreement, and requested that

the agency reinstate her complaint from the point where processing ceased.

Specifically, complainant alleged that the agency failed to comply with

provisions (A)(4) and (B)(4) of the agreement. Complainant states

that although the agency had thirty (30) calendar days to adhere to

the agreement and forward a written copy of such adherence, she has not

been informed of such adherence. Complainant claims that the specified

records have not been expunged and the Opportunity to Improve has not

been replaced with a Performance Work Plan rating of achieved. Further,

complainant notes that one of the issues cited during mediation was a

Non-Insured Crop Disaster Assistance Program (NAP) Training Session.

Complainant states that she was recently given a NAP award but omitted

from a memorandum prepared by Person B, State Executive Director.

Finally, complainant notes that her computer was removed immediately after

the mediation hearing. Complainant states that this was a violation of

the spirit of the mediation agreement when the agreement was not to take

place until two weeks later.

In its December 26, 2002 decision, the agency concluded that it complied

with the terms of the December 5, 2001 settlement agreement. The agency

stated that it processed the last action required under the agreement on

December 26, 2001 and provided complainant notice of all corrective action

taken and when it was implemented as prescribed in provision (A)(4).

The agency noted that the new replacement Performance Work Plan was dated

November 6, 2001, the same as the old one, the Opportunity to Improve

had been removed, and that complainant and her attorney were free to

review her Official Personnel File and her Performance File at any time.

Further, with regard to the issue of Non-Insured Crop Disaster Assistance

Program (NAP) training, NAP awards, and the complainant's computer,

the agency noted that none of these are mentioned in the settlement

agreement at issue.

Complainant filed the present appeal on January 24, 2003.<1> In her

appellate brief, complainant states that the letter delivered to her on

January 24, 2002, noting that her file was expunged of the Opportunity to

Improve, was hand delivered by Person A, assistant to Person B, the �prime

culprit� against whom she filed her complaint. Complainant claims that

the letter was in an open envelope. Complainant alleges that Person A,

the assistant, signed Person B's signature to the substituted Opportunity

to Improve. Complainant claims this was a clear violation of her privacy

rights and provision (B)(1). Further, complainant claims that provision

(B)(2) was breached when Person B failed to contact her once during the

implementation of the agreement and as evidenced by the delivery of the

letter expunging the Opportunity to Improve and Person A's signature

on the letter. Finally, complainant claims that the agency breached

provision (B)(5) since Person A delivered the achievement rating on

January 22, 2002.

The record contains a January 30, 2002 memorandum to complainant from

the State Executive Director (Person B) regarding her Performance

Evaluation. Attached to this memorandum was a copy of complainant's

Performance Work Plan for the rating period of October 1, 2000, through

September 30, 2001. A review of the Performance Work Plan reveals

that complainant was rated as Achieved on all applicable elements.

The Performance Work Plan is signed by the rating official on November

6, 2001. The Performance Work Plan contains a typed note that it was

presented to complainant on January 22, 2002; however, she refused to

sign it.

The record contains a January 23, 2002 letter to complainant signed by the

State Executive Director informing her of the actions taken to implement

the December 5, 2001 settlement agreement. With regard to provision

(A)(1), the agency noted that the SF-52 was processed on December 7, 2001,

and forwarded to Washington, DC for further processing. With regard

to provision (A)(2), the agency noted that payment for $1,500.00 was

processed on December 26, 2001. With regard to provision (A)(3),

the agency noted that due to the discovery of erroneous information

concerning complainant's grade and step level at the time of mediation,

the within-grade increase was processed to the GS-13-8 level. With regard

to provision (A)(4), the agency noted that a new Performance Work Plan

was prepared reflecting a rating of achieved in all performance plan

elements and was placed in complainant's performance file. The agency

noted that the Performance Work Plan is dated November 6, 2001, which

was the date of the original rating. Further, the agency stated that the

opportunity to improve rating has been removed from all records maintained

by the agency of performance related matters. With regard to provision

(A)(5), the agency noted that complainant was placed on administrative

leave for the specified period.

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 present case, we find that complainant failed to show that the

agency breached the December 5, 2001 settlement agreement. According to

provision (A)(4), the agency was to expunge all references in all records

regarding the performance related matters concerning the complainant

since May 21, 2001. The agency was required to remove the Opportunity

to Improve dated November 6, 2001, and replace the Performance Work

Plan dated November 6, 2001, with a Performance Work Plan rating of

achieved in all performance plan elements. The record contains a copy of

complainant's November 6, 2001 Performance Work Plan rating complainant

as achieved in all performance plan elements. We note that complainant

acknowledges receipt of the Performance Work Plan rating of achieved on

January 22, 2002. Also, the record contains a January 23, 2002 letter to

complainant signed by the State Executive Director informing her of the

removal of the Opportunity to Improve rating from all records maintained

by the agency of performance related matters. Upon review, we find that

complainant has failed to show that the agency breached provision (A)(4).

Similarly, we find that complainant failed to show that the agency

breached provision (B)(4) of the agreement. According to provision

(B)(4), after the agreement is fully implemented, within 30 calendar

days, the agency was required to provide complainant with a written

notice explaining the specific actions taken to implement the agreement.

The agency notes that the last action taken to implement the agreement was

taken on December 26, 2001, and states that it provided complainant with

written notice explaining the actions taken to implement the agreement on

January 23, 2002. The record reveals that a check was issued to payment

for $1,500.00 on December 26, 2001. The record shows that on January

23, 2002, the agency sent a letter to complainant signed by the State

Executive Director informing her of the actions taken to implement the

December 5, 2001 settlement agreement. Thus, we find that complainant

failed to show that the agency breached provision (B)(4) of the agreement.

With regard to complainant's claims regarding the NAP training, NAP

awards, and the removal of complainant's computer, we find that these

issues are beyond the scope of the December 5, 2001 agreement.

Finally, we note that on appeal complainant raises new breach allegations.

If complainant wishes to further pursue new breach claims, she is

advised to contact the agency's EEO Director in accordance with 29

C.F.R. � 1614.504(a).

Accordingly, the agency's final 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

October 23, 2003

__________________

Date

1On her Notice of Appeal form, complainant

lists that she is appealing formal complaint numbers 020419 and 020318.

Complainant also indicates on the appeal form and in her brief on appeal

that she is alleging a breach of settlement agreement. The record reveals

that complainant filed formal complaints for Agency Numbers 020419 and

020318 on July 15, 2002 and March 4, 2002 respectively. The record

reveals that the agency has not yet issued final decisions on these

two formal complaints. Thus, to the extent complainant is attempting

to file an appeal on agency numbers 020419 and 020318, such an appeal

would be premature. Thus, this decision only addresses complainant's

breach of settlement claim.