0120082195
09-11-2008
Stella L. Paige, Complainant, v. Mary E. Peters, Secretary, Department of Transportation, Agency.
Stella L. Paige,
Complainant,
v.
Mary E. Peters,
Secretary,
Department of Transportation,
Agency.
Appeal No. 0120082195
Agency No. 200620663FTA
DECISION
JURISDICTION
Complainant, a GS-7 Program Assistant, filed a timely appeal with this
Commission from a final decision (FAD) by the agency dated March 14,
2008, finding that it was in compliance with the terms of the October
26, 2006 settlement agreement into which the parties entered. 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:
1) The agency shall request a desk audit to determine the appropriate
grade level and position title for the duties currently being performed by
the aggrieved. 2) The Human Resource Office will conduct the Desk Audit
within 10 working days upon receipt of this agreement. The findings of
the Desk Audit will be submitted to the supervisor and the aggrieved
not later than 10 working days of concluding the audit. If the audit
results changes the Counselee's position, a Personnel Action (SF-52),
will be initiated the following pay period to reflect the position
and/or grade; and 3) If necessary, the supervisor will prepare a position
description which accurately describes the duties and responsibilities
of the position. This will be completed within five business days after
the agreement has been signed by the aggrieved and the agency.
The record shows that the agency purportedly conducted a desk audit on
October 31, 2006 in accordance with the executed agreement. The record
further shows that the results of the desk audit concluded that
complainant's "position is not properly allocated and titled Program
Assistant, GS-0303. The correct title and series [is] Administrative
Assistant, GS-303." Further, the desk audit concluded that the
recommended title and code for complainant's position is Administrative
Assistant, GS-301-07.
By letters to the agency dated September 13, 2007, November 13,
2007 and December 12, 2007, 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 follow proper procedures when conducting the desk
audit resulting in an unfavorable decision. Complainant protested the
results of the audit since her immediate supervisor was not consulted
during the audit process, and complainant contended that the audit did
not accurately reflect her position description.
As a result, the record reflects that the agency's Chief Counsel,
an agency civil rights official, and a human resources representative
met with complainant to address her concerns, and all parties verbally
agreed to conduct a second desk audit. The second audit, conducted in
May 2007, resulted in a recommended upgrade of complainant's position,
Program Assistant, GS-303-08. However, complainant claimed that the
agency refused to honor the results of the second audit. Essentially,
complainant asserted that the agency is not in compliance with the
settlement agreement particularly since the first audit was not properly
conducted. Also in complainant's appeal, she strongly argues that a
desk audit was not performed the first time because of its failure to
"uncover what duties an employee undertakes."
In its March 14, 2008 FAD, the agency maintained that the initial audit
was conducted on October 31, 2006, and complainant was provided with the
results. The agency further maintained that pursuant to the settlement
agreement, complainant "agreed to accept the results of the agency desk
audit as final." Also, the agency noted that a careful review of the
terms of the settlement agreement executed by the parties in this matter
reveals that, with respect to the auditing process, the agreement is
silent as it pertains to the process the agency must use to conduct the
audit. Therefore, the agency concluded, based on the aforementioned,
complainant has failed to show an agency breach.
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).
The burden is on the party alleging breach to establish that a breach
has occurred. Based on the evidence in the record, the Commission
finds that complainant has shown a breach of the settlement agreement.
While there is nothing in the settlement language mandating a particular
auditing method, the Commission does determine that the purported
desk audit on October 26, 2006 was in fact inadequate or incomplete,
thereby not constituting a desk audit and not satisfying the terms of
the settlement agreement. The October audit was conducted without the
input of complainant's supervisor, and the position description was not
accurately reflected in the audit. The agency does not contest this in
the record. Without an accurately reflected position description and
the input from complainant's supervisor, the agency is unable to reveal
the actual day-to-day duties of complainant as an employee. Further,
if the agency had concluded that the October audit completely revealed
the daily duties performed by complainant, it would not have granted a
second audit in May 2007. Thus, the agency did not conduct a desk audit
on October 31, 2006. The desk audit performed in May 2007 is considered
the desk audit performed in accordance with the settlement agreement in
this matter.
Accordingly, the agency's final decision finding no settlement breach
is REVERSED.
ORDER (C0900)
The agency is ordered to take the following remedial action:
I. Initiate a Personnel Action (SF-52) pay period to reflect complainant's
correct position and/or grade of Program Assistant, GS-303-08, within
(30) calendar days of the date this decision becomes final.
The agency is further directed to submit a report of compliance, as
provided in the statement entitled "Implementation of the Commission's
Decision." The report shall include supporting documentation verifying
that the corrective action has been implemented.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0408)
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 (M0408)
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 (R0408)
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 (Z0408)
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, 2008
__________________
Date
2
0120082195
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120082195