0120070273
03-30-2009
Shari M. Jochem, Complainant, v. Ken L. Salazar, Secretary, Department of the Interior, Agency.
Shari M. Jochem,
Complainant,
v.
Ken L. Salazar,
Secretary,
Department of the Interior,
Agency.
Appeal No. 0120070273
Agency No. OS-04-009
DECISION
Complainant filed an appeal with this Commission from a final decision
by the agency dated September 8, 2006, regarding the agency's compliance
with the terms of the September 13, 2005 settlement agreement into which
the parties entered.
The settlement agreement provided, in pertinent part, that:
5. If, upon the [a]gency's issuance of vacancy announcement of a
GS-7 and a GS-9 Paralegal position in the Albuquerque Regional Office,
[c]omplainant applies for the Paralegal positions and [c]omplainant
is found well-qualified for either position, the [a]gency will give
[c]omplainant priority consideration for the position at each grade for
which she is certified eligible.
. . . .
9. Upon [c]omplainant's return to work on October 12, 2005,
the [a]gency will place [c]omplainant in a part-time position, in the
Southwest Regional Office, Albuquerque, New Mexico, working twenty-five
(25) hours per week. Upon [c]omplainant's return to work, her duty hours
will be 7:30 a.m. through 12:30 p.m. Complainant will work for the
[a]gency twenty-five (25) hours per week, unless otherwise approved,
in writing and in advance, by [c]omplainant's supervisor(s).
. . . .
12. The [a]gency will re-write the narrative attachment to
[c]omplainant's performance evaluation for the period May 1, 2004 -
April 30, 2005[,] to exclude the following language: . . .
We note that the settlement agreement also provided that complainant would
receive specified monetary payments and leave. The only provisions at
issue, however, are provisions 5, 9, and 12.
Complainant alleged that the agency was in breach of the settlement
agreement and requested that the agency specifically implement its
terms. Specifically, complainant alleged that the agency failed
to comply with sections 5, 9, and 12 of the settlement agreement.
Complainant stated that before she returned to work as described in
provision 9, the agency announced an opening for a Paralegal position,
contemplated by provision 5. Complainant applied for the position and
was selected for the position. Thereafter, complainant returned to work
in the Paralegal position and requested a part-time schedule, consistent
with provision 9. Complainant's request for a part-time schedule was
granted, but a few weeks later, the Acting Regional Solicitor, according
to complainant, began to pressure complainant to resume a full-time work
schedule. Moreover, complainant was being denied sick and annual leave
accrual because the agency considered the difference in hours between
complainant's part-time hours and a full-time schedule to be leave
without pay (LWOP). Additionally, complainant alleged that the agency
failed to comply with provision 12, wherein the agency agreed to delete
certain narrative paragraphs of complainant's performance evaluation.
In its September 8, 2006 final decision, the agency concluded that
no breach of provisions 5 and 9 occurred as alleged by complainant.
Specifically, the agency found that the settlement agreement did not
provide that complainant would enjoy a part-time work schedule if
she applied and was selected for a Paralegal position as described in
provision 5. The agency found that complainant voluntarily accepted the
full-time Paralegal position. The agency did not agree with complainant
that she should not be required to relinquish the part-time work schedule
envisioned in provision 9, upon her selection for the advertised Paralegal
position contemplated by provision 5. Nevertheless, the agency noted
that complainant was selected for the Paralegal position and also granted
a part-time schedule at her request. The agency found no breach occurred
when the Acting Regional Solicitor made repeated requests that complainant
return to a full-time work schedule.
The agency's final decision found that the agency had not complied
with provision 12 of the settlement agreement. The agency found that
complainant's performance evaluation for the period of May 1, 2004 to
April 30, 2005, did not appear in the agency's personnel records and the
agency failed to maintain that record. The agency's decision directed
the Office of the Secretary to provide the required performance evaluation
to complainant.
On appeal, complainant argues that she has no confirmation that the
agency has complied with provision 12 to date. Complainant states
that the acting Regional Solicitor has ceased pressuring complainant
to resume a full-time work schedule and that her schedule has been
corrected from showing LWOP, to reflect that she is a part-time employee.
Complainant requests that the acting Regional Solicitor be directed
to discontinue making remarks about complainant's EEO settlement and
her part-time schedule. Complainant also requests attorney's fees in
connection with her efforts to secure the agency's compliance with the
settlement agreement.
On appeal, the agency requests that complainant's appeal be denied
because the agency did not breach the settlement agreement. With respect
to provisions 5 (Paralegal position and priority consideration) and 9
(part-time work schedule), the agency states that complainant voluntarily
applied for the Paralegal position and that complainant accepted the
position advertised. The agency argues that it did not breach the
settlement agreement by classifying the advertised full-time position as
it did. Additionally, accompanying the agency's brief on appeal is a copy
of complainant's performance evaluation for May 1, 2004 through April 30,
2005, which the agency notes, does not include any narrative attachment,
and does not include the language the parties agreed would be deleted
(as described in provision 12).
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).
In the instant case, we find that no breach of the settlement agreement
has occurred. We concur with the agency that complainant's selection
for and acceptance of a promotional opportunity (in this case, one
contemplated by provision 5 of the settlement agreement) requires that
complainant accept the terms of that position, notwithstanding the
terms (in this case, a negotiated part-time schedule) of complainant's
prior position. We find that no breach of provisions 5 or 9 occurred
as alleged.
The performance evaluation submitted by the agency on appeal does not
include the narrative language shown in provision 12 of the settlement
agreement. The Commission recognizes that in the agency decision, the
agency found that it had not complied with provision 12. The agency
made that finding because there was never a performance evaluation for
the dates in question in the Human Resources Office and because there
were no computer records of any such evaluation. The agency's finding
of breach was really a records-keeping violation (the agency states in
the decision, "The Agency is required to maintain employee records.").
The agency has since that time issued the performance evaluation and it
properly does not contain any of the language that was supposed to be
"excluded." Even if the language which was to be excluded was originally
in the performance evaluation, as the settlement agreement assumes, there
is no evidence showing that the agency failed to remove the language in
the evaluation and it is clearly not in the evaluation now. Therefore,
we find that the agency has not breached provision 12 of the agreement.
The agency's finding of no breach is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 tends 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 77960,
Washington, DC 20013. 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 (S0408)
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 (Z1008)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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
March 30, 2009
__________________
Date
2
0120070273
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
5
0120070273
6
0120070273