01985532
05-22-2000
Sandra Walters, Complainant, v. Louis Caldera, Secretary, Department of the Army, Agency.
Sandra Walters, )
Complainant, )
)
v. ) Appeal No. 01985532
) Agency No. CATS 9509F0150
Louis Caldera, )
Secretary, )
Department of the Army, )
Agency. )
____________________________________)
DECISION
Complainant filed a timely appeal from an agency dated June 3, 1998, which
found the agency was in compliance with the terms of the December 13,
1995 settlement agreement.<1> See 64 Fed. Reg. 37,644, 37,659, 37,660
(1999)(to be codified and hereinafter referred to as EEOC Regulation 29
C.F.R. � 1614.402); 29 C.F.R. � 1614.504(b); and 64 Fed. Reg. 37,644,
37,659 (1999)(to be codified at 29 C.F.R. � 1614.405).
The settlement agreement provided, in pertinent part, that:
The Army agree:
(1) It will rewrite complainant's job description no later than 7
February 1996 to accurately reflect her current duties.
By letter to the agency dated June 8, 1996, complainant alleged that the
agency was in breach of the settlement agreement, and she requested that
the agency specifically implement the agreement's terms. Specifically,
complainant alleged that the agency failed to include four major duties
in the new job description. These duties included: (1) paperwork for
the vendor, (2) bar-coding property, (3) the Laurel River Lake Project,
and (4) the government VISA Credit Card Procurement System.
The agency issued a decision July 24, 1996. In this decision, the
agency found that it was in compliance with the settlement agreement.
The complainant appealed the decision to this Commission. On November
7, 1997, the Commission vacated the agency decision and remanded it
to the agency. Specifically, the Commission ordered the agency to
supplement the record with evidence including affidavits from persons
with knowledge of complainant's duties and percentages of time she
performed these duties.
The agency supplemented the record and allowed the complainant to submit
information regarding her job description. In its June 3, 1998 decision,
the agency concluded that the four duties were included in the general
language of the job description and that the agency was in compliance
with the settlement agreement.
Volume 64 Fed. Reg. 37,644, 37,656 (1999)(to be codified and hereinafter
referred to as 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 instant case, the intent of the settlement agreement was for the
agency to rewrite the job description to accurately reflect complainant's
job duties. The agency acknowledged that complainant performs the four
duties that she wants included; however, the agency found that the general
language of the new job description included these individual duties
and that these duties did not need to be specified. In section 2 of
the job description, the agency describes duty 1 (paperwork for vendor)
as �prepares receiving and delivery reports for payment of goods and
services received.� Also in section 2, the agency identifies duty 2
(bar-coding) as �serves as property accounting clerk, assuring that
acquisitions, transfers, disposal, and all other property transactions
are properly handled, documented, and bar-coded.� The Laurel River Lake
Project (duty 3) is referenced in the major duties section of the job
description as �serves as support for and assists . . . facilities at
multiple purpose lake projects and local flood control projects within
the Eastern Kentucky Area.� Finally, the agency discusses complainant's
role with the VISA Credit Card Procurement System (duty 4) in section 3,
�Makes purchases utilizing the Government Visa Credit Card, and manages
the VISA Credit Card Procurement System for the projects.� Although
complainant disapproves of the general language in the job description,
her supervisor and other agency officials with knowledge of her duties
believe the job description is accurate.
Upon review, the Commission finds that the agency corrected the old
job description so that it accurately reflects complainant's duties.
Therefore, the agency's decision is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)
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:
May 22, 2000
____________________________
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_______________ __________________________
Date 1On November 9, 1999, revised regulations governing the EEOC's
federal sector complaint process went into effect. These regulations
apply to all federal sector EEO complaints pending at any stage in
the administrative process. Consequently, the Commission will apply
the revised regulations found at 64 Fed. Reg. 37,644 (1999), where
applicable, in deciding the present appeal. The regulations, as amended,
may also be found at the Commission's website at www.eeoc.gov.