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.