01a50206
11-08-2005
Paula M. Brooks, Complainant, v. John W. Snow, Secretary, Department of the Treasury, (Internal Revenue Service), Agency.
Paula M. Brooks v. Department of the Treasury
01A50206
November 8, 2005
.
Paula M. Brooks,
Complainant,
v.
John W. Snow,
Secretary,
Department of the Treasury,
(Internal Revenue Service),
Agency.
Appeal No. 01A50206
Agency No. TD 04-2291B
DECISION
Complainant filed a timely appeal with this Commission from a final
decision by the agency dated September 30, 2004, finding that it was
in compliance with the terms of a June 24, 2004 settlement agreement.
See 29 C.F.R. � 1614.402; 29 C.F.R. � 1614.504(b); and 29 C.F.R. �
1614.405.
The June 24, 2004 settlement agreement provided, in pertinent part, that:
5(b) For the time period of October 1, 2003 through January 17,
2004, [a named Director, Work Force Relations] will provide input
on the Complainant's work accomplishments, which will be used in the
Complainant's FY 2004 Annual Appraisal. For the time period of June 27,
2004 through September 30, 2004, the Chief, Plan and Management Branch,
will rate the Complainant's work, which will be used in the Complainant's
FY 2004 Annual Appraisal.
5(d) The Complainant will be allowed to provide a self-assessment of her
accomplishments for the rating period of October 1, 2003 through September
30, 2004, to her supervisor, which will be taken into consideration when
the Complainant is rated for her annual appraisal for FY 2004.
5(e) The Complainant will be assigned GS-14 work according to her
position description in her new job assignment in the Human Capital
Office, Project Management Office, effective June 27, 2004.<1>
By letter to the agency dated July 19, 2004, complainant alleged that
the agency breached the settlement agreement, and requested that her
underlying complaint be reinstated for further processing. Specifically,
complainant alleged that the agency failed to implement provisions 5(b),
5(d) and 5(e). Regarding provision 5(b), complainant claimed that the
Director had complainant's former Manager rate her for the October 1,
2003 through June 27, 2004 rating period. Regarding provision 5(d),
complainant claimed that her former Manager requested a copy of her
annual Performance Agreement and Commitments "so she can comply with
the directive from [named Director]." Complainant further claimed that
the Director never provided her with an annual Performance Agreement and
Commitments "so I would not have an un-rated time this performance year."
Regarding claim 5(e), complainant claimed that the work assignments she
was given did not reflect the GS-14 level work.
In its September 30, 2004 final decision, the agency found no breach.
The agency found that it did not breach provisions 5(b) and 5(d)
because the rating period for complainant's FY 2004 Annual Appraisal
had not yet passed, as of the date of the final decision. The agency
further determined, however, that it intended to fully comply with these
provisions before complainant's FY 2004 Annual Appraisal was due.
Regarding provision 5(e), the agency found that after complainant was
reassigned to another Manager, she and the Manager had a long discussion
concerning her performance expectations and they agreed on commitments
for the fiscal year. The agency found that complainant had been, and
continues to be, assigned work assignments as agreed upon by herself
and her Manager. Furthermore, the agency found that complainant was
assigned to an important and high-level team assembled to develop the
Concept of Operations for the entire Human Capital organization; and
that she was assigned the duties and responsibilities of coordinating
the vacancy management initiative.
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 O 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).
Provisions 5(b) and 5(d)
Regarding provisions 5(b) and 5(d), the Commission finds that the agency
properly found no breach of these provisions. On June 24, 2004, the
parties executed the instant settlement agreement. Provision 5(b) states
that for the time period of October 1, 2003 through January 17, 2004,
the Director would provide input on complainant's work accomplishments,
which would be used in her FY 2004 Annual Apprisal; and for the time
period of June 27, 2004 through September 30, 2004, the Chief would rate
complainant's work, which would be used in complainant's FY 2004 Annual
Appraisal. We also find that provision 5(d) states that complainant
would be allowed to provide a self-assessment of her accomplishments
for the rating period of October 1, 2003 through September 30, 2004,
to her supervisor who would then take it into consideration when rating
complainant for her annual appraisal for FY 2004. We note that on July
19, 2004, less than one month following the execution of the settlement
agreement, complainant claimed that the agency breached provisions 5(b)
and 5(d).
The agency asserts that it had not yet provided input on complainant's
work accomplishments, or rated complainant for the time period of
June 27, 2004 through September 30, 2004 (provision 5(b)); and that
complainant had not yet been allowed to provide a self-assessment of
her accomplishments for the relevant period to her supervisor who would
then take it into consideration when rating complainant for her annual
appraisal for FY 2004 (provision 5(d)). Complainant alleged breach
in July 2004; however, the instant provisions address the annual
appraisal for FY2004, which had not yet ended at the time the breach
claim was raised. If, upon expiration of the relevant rating period,
complainant determines that the agency did not meet its affirmative
obligations regarding provisions 5(b) and 5(d), complainant could again
raise a breach claim regarding these provisions. However, the Commission
determines that there was no breach of these provisions when the breach
claims were raised in July 2004. The agency's finding of no breach
regarding provisions 5(b) and 5(d) is therefore AFFIRMED.
Provision 5(e)
Regarding provision 5(e), we find that the record in this case contains
insufficient evidence for us to determine whether a breach of provision
5(e) of the instant settlement agreement has occurred. We note, for
example, that the agency's final decision finding no breach is predicated
upon statements by complainant's Manager. While the record contains a
Management Official Performance Agreement, relating to complainant's
work as a Human Resources Specialist, the record nevertheless
contains no affidavit from the above referenced Manager indicating
that she purportedly fulfilled the obligations under provision 5(e)
of the settlement agreement by providing complainant with �GS-14 work
. . . in her new job assignment.� Given this lack of evidence, we are
unable to ascertain whether the agency complied with provision 5(e)
of the settlement agreement.
Accordingly, the agency's finding of no breach of provisions 5(b) and
5(d) is AFFIRMED. The agency's finding of no breach of provision 5(e)
of the settlement agreement is VACATED. This matter is REMANDED to the
agency for further processing in accordance with the ORDER below.
ORDER
The agency is ORDERED to take the following action:
The agency shall supplement the record with evidence clearly showing
that it has complied with provision 5(e) of the instant settlement
agreement. The supplementation of the record shall include any
documentation, such as an affidavit from the Manager indicating whether
complainant was assigned GS-14 work according to her position description
in her new assignment (provision 5(e)) following the execution of the
settlement agreement. Within thirty (30) calendar days of the date
this decision becomes final, the agency shall issue a new decision
concerning whether it breached provision 5(e) of the June 24, 2004
settlement agreement.
A copy of the agency's new decision must be sent to the Compliance
Officer as referenced herein.
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 (T0900)
This decision affirms the agency's final decision/action in part, but it
also requires the agency to continue its administrative processing of a
portion of your complaint. 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 on both that portion
of your complaint which the Commission has affirmed and that portion
of the complaint which has been remanded for continued administrative
processing. 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 your appeal with the Commission, until
such time as the agency issues its final decision on your complaint.
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
November 8, 2005
__________________
Date
1The settlement agreement also provided that the agency would restore 88
hours of annual leave and 66 hours of sick leave to complainant; and for
the time period of January 18, 2004 through June 26, 2004, complainant
would be given credit for the special project that she was assigned
and this credit would be reflected in her FY 2004 annual appraisal.
These provisions are not at issue in the instant appeal.