01A21090_r
04-30-2002
Ruthie L. Windsor, Complainant, v. Thomas E. White, Secretary, Department of the Army, Agency.
Ruthie L. Windsor v. Department of the Army
01A21090
April 30, 2002
.
Ruthie L. Windsor,
Complainant,
v.
Thomas E. White,
Secretary,
Department of the Army,
Agency.
Appeal No. 01A21090
Agency No. BQEGFO0103B0070
DECISION
Complainant appeals from the agency's decision dated November 15,
2001, which concluded that the agency had not breached the settlement
agreement between the parties. On April 12, 2001, the parties resolved
complainant's complaints by entering into a settlement agreement, which
provided, in pertinent part, that complainant would receive the following:
3(a) The Complainant will be afforded the opportunity to provide her
input as to an accurate job description she believes she was performing
from October 27, 2000 to date. The Complainant will provide her input to
[Mr. X] as soon as possible but no later than May 14, 2001.
No later than 14 work days following his receipt of the Complaint's
input, [Mr. X] will prepare a finalized job description depicting the
duties he believes the Complainant is performing and/or that he needs the
Complainant to perform. [Mr. X] will discuss the finalized job description
with the Complainant and provide her a copy, if desired. The finalized
job description will be forwarded thru the Civilian Personnel Advisory
Center (CPAC) with the appropriate documentation to request the duties
be classified by a Classification Specialist from the Civilian Personnel
Operations Center (CPOC), Fort Benning, Ga. The USAATTC Commander who
is the delegated classification authority (DCA) for the organization
will provide a letter to the CPOC granting them official classification
authority for this position only and CPOC's classification determination
will, therefore, be final. Both management and the Complainant agree
to accept without challenge the CPOC Classification.
If the classification is at a higher grade or at the same title,
series, and grade, management ([Mr. Y] or someone at his direction)
will initiate the appropriate paperwork to request the Complainant be
assigned the new Job Description and/or that the position be filled at
the higher grade but with a different title and series, the Complainant
will remain assigned on her current Position Description.
It is understood and agreed that, ultimately, it is a management
prerogative to determine the duties to be assigned to employees. It is
also understood and agreed that the rules and regulations governing
the filling of positions might require that the Complainant's position,
if upgraded, be filled through competitive procedures.
3(b) As long as the Complainant and [Mr. Z] both remain assigned under
the supervision of [Mr. Y], [Mr. Y] will insure that [Mr. Z] will not
be in the Complainant's performance rating chain.
By letter to the agency dated October 10, 2001, complainant alleged that
the agency was in breach of the settlement agreement. Specifically,
complainant alleged that Mr. Z continued in her supervisory chain
and changed her duty appointment orders from primary to 3rd alternate.
Complainant argues that the agency breached the settlement agreement when
Mr. X reassigned her with an effective date of April 24, 2001 instead of
April 12, 2001. Further, complainant argues that she was not reassigned
when her April 24, 2001 reassignment ended on August 24, 2001. Finally,
complainant argues that the agency breached the settlement agreement
when Mr. X received tainted job description inputs from Mr. Z.
On appeal, complainant elaborates on her allegations and argues that
the finalized job description was not the same job description that she
had discussed with Mr. X. Complainant also argues that, although the
settlement agreement does not specifically require her to be reassigned,
the agency's failure to reassign her left her in the same performance
rating chain with Mr. Z.
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).
Regarding complainant's allegation that the agency breached paragraph 3(a)
of the settlement agreement, we find the agency in breach. The agreement
allows complainant to provide input as to the job description she believes
she was performing. Mr. X was then required to prepare a finalized job
description depicting the duties he believed complainant was performing,
and discuss the finalized job description with complainant before sending
it to CPAC. The record indicates that complainant submitted her input,
Mr. X wrote the job description, and, by letter dated May 22, 2001,
complainant agreed with the position description and requested that the
position description be sent to the CPAC. When Mr. X attempted to submit
the position description, he was informed (by Person A), on May 29, 2001,
that the position description could not be submitted without 9 factors.
Mr. X submitted a new position description, with 9 factors, without first
discussing the changes with complainant. Therefore, we find that the
agency breached provision 3(a) of the settlement agreement when the final
position description was submitted without a discussion with complainant.
Complainant also argues that provision 3(a) was breached when Mr. X
received tainted job description input from Mr. Z. However, the
settlement agreement does not prohibit Mr. X from receiving job
description input from others, whether tainted or not.
Regarding provision 3(b) of the settlement agreement, we find complainant
has not shown breach. Complainant argues that since neither she nor
Mr. Z were transferred, she assumes that he is still in her performance
rating chain. A memorandum dated March 14, 2001, signed by complainant
and Mr. Y states that complainant will be detailed to the Resources and
Personnel Directorate under the direct supervision of Mr. X. Further,
the memorandum indicates that, with the new detail, complainant will
have no contact with Mr. Z. Complainant argues that Mr. Z is still in
her performance chain because he changed her duty appointment orders
from primary to 3rd alternate. However, the April 24, 2001 memorandum
which changes her duty appointment is signed by Mr. X. There is no
indication that Mr. Z was involved with her change of duty appointment.
Complainant has failed to show that Mr. Z is still in complainant's
performance rating chain. Moreover, complainant does not argue that her
performance has been rated by anyone, much less Mr. Z, during the time
in question.
Complainant appears to be arguing that the settlement agreement was
breached when she was not reassigned timely, and when she was not
reassigned for a second time after her first reassignment ended. However,
the settlement agreement does not provide for any such action. Therefore,
the agency is not in breach with regard to complainant's reassignment.
The agency's decision finding no breach of provision 3(b) of the
settlement agreement is AFFIRMED. The agency's decision finding no
breach of provision 3(a) of the settlement agreement is REVERSED and
we REMAND the matter to the agency for further processing in accordance
with this decision and applicable regulations.
ORDER
The agency is ORDERED to specifically enforce provision 3(a) of
the settlement agreement. Within 30 days of the date this decision
becomes final, Mr. X shall discuss the finalized job description with
Complainant and provide her a copy, if desired. The agency shall provide
documentation (e.g., a statement signed by complainant and/or Mr. X
confirming the discussion) of the specific enforcement of the subject
agreement 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
April 30, 2002
__________________
Date