Patella Hillard, Complainant,v.Gordon R. England, Secretary, Department of the Navy, Agency.

Equal Employment Opportunity CommissionSep 11, 2002
01A12625_r (E.E.O.C. Sep. 11, 2002)

01A12625_r

09-11-2002

Patella Hillard, Complainant, v. Gordon R. England, Secretary, Department of the Navy, Agency.


Patella Hillard v. Department of the Navy

01A12625

September 11, 2002

.

Patella Hillard,

Complainant,

v.

Gordon R. England,

Secretary,

Department of the Navy,

Agency.

Appeal No. 01A12625

Agency Nos. 98-168002

99-168003

DECISION

Complainant filed a timely appeal with this Commission from a final agency

decision dated February 1, 2001, finding that it was in compliance with

the terms of a March 2, 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:

2. The Agency agrees to promote Complainant effective March 12, 2000,

to the position of Budget Analyst, GS-560-12 Step 4. The duties of that

position will be commensurate with other GS-560-12 positions within

the Budget Department of the Directorate for Resources Management.

It is understood that Complainant will be eligible for a standard within

grade pay increase in two years (2002) subject to a satisfactory work

performance level.<1>

By letter to the agency dated December 28, 2000, complainant alleged

that the agency breached the settlement agreement, and requested that

the agency implement its terms. Specifically, complainant alleged that

since her promotion to the GS-12 Budget Analyst position, (1) she has not

been afforded the opportunity to grow in that position; (2) her duties

remained the same (from those she was performing at the GS-11 level),

"although in some areas they have increased;" (3) she was excluded from

meetings and in-house training given to other GS-12's involving new

systems; and (4) "the workload that I am tasked with is impossible and

it appears that [a named agency official's] refusal to redistribute the

work is a direct act concerning my previous complaint

filed against her. The assignment of the other GS-12's (white) differs

dramatically in comparison to those assigned to me by [a named official]."

In its February 1, 2001 decision, the agency found no breach.

Specifically, the agency determined that agency management indicated

that complainant's workload is commensurate with her position at the

GS-12 level; and that complainant is performing some of the same duties

that were performed at the GS-11 level, similar to other GS-12 employees.

The agency further stated that management noted training and attendance

at in-house meetings were not issues with respect to the settlement

agreement and were not made a part of the settlement.

On appeal, complainant through her counsel argues her work "is not

commensurate with that done by GS-12's in her office. Moreover, it

was wrong of the Navy to so conclude with no evidence other than a bald

conslusion of management."

In response, the agency restates the position it took in its FAD,

and submits a copy of complainant's GS-560-12 Budget Analyst Position

Performance Standard and an affidavit dated May 4, 2001, prepared by

complainant's supervisor. Therein, the supervisor stated that complainant

is a GS-560-12 in the Budget Service and that it is a matter of time

before she realizes she is working at that level with other senior

budget analysts. The supervisor further stated that all of the agency's

four GS-12 Senior Budget Analysts perform different functions of the

Budget Process. Finally, the supervisor questioned complainant's claim

that she was denied training while the other GS-12's received training

since she approved training for complainant.

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).

The record reveals that the agency has promoted complainant as a

GS-560-12 Budget Analyst as required by the agreement. The record

contains complainant's supervisor's affidavit wherein she stated that

it is a matter of time before complainant realizes she is working at the

GS-560-12 level. However, the Commission finds no evidence in the record

that affirmatively delineates that the duties of complainant's Budget

Analyst position are �commensurate with other GS-560-12 positions within

the Budget Department of the Directorate for Resources Management� as

specified in provision 2. Consequently, we find that this matter must

be remanded to the agency for further investigation.

Accordingly, the agency's decision that it did not breach provision (2)

of the settlement agreement is VACATED. This matter is hereby REMANDED

to the agency for further processing in accordance with this decision

and the Order below.

ORDER

The agency is ORDERED to conduct a supplemental investigation.

Specifically, the agency shall within thirty (30) calendar days of the

date this decision becomes final supplement the record with evidence to

show the duties performed by complainant as a Budget Analyst as compared

to the other Budget Analyst, GS-12s in the Budget Department of the

Directorate for Resources Management. Thereafter, the agency shall

issue a new final decision regarding complainant's allegations of breach.

A copy of the agency's new final decision must be sent to the Compliance

Officer as referenced below.

IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)

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)

(1994 & Supp. IV 1999). 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 (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 (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

September 11, 2002

__________________

Date

1The settlement agreement also provides for restoration of sick leave

and payment of $18,900. Those provisions are not at issue in the

instant appeal.