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.