01996285
01-08-2001
Verna A. Worrall, Complainant, v. Louis Caldera, Secretary, Department of the Army, Agency.
Verna A. Worrall v. Department of the Army
01996285
January 8, 2001
.
Verna A. Worrall,
Complainant,
v.
Louis Caldera,
Secretary,
Department of the Army,
Agency.
Appeal No. 01996285
Agency No. 9411EO430
DECISION
Complainant filed a timely appeal with this Commission from a final
decision by the agency dated July 23, 1999, finding that it was in
compliance with the terms of the May 3, 1995 settlement agreement into
which the parties entered.<1> 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:
3. The Army agrees to do the follows:
Reassign complainant to the position Quality Assurance Specialist,
GS-1910-09, Job Number 95147.
Restore 100 hours sick leave.
Reimburse complainant $329.12 in postage and copy fees.
By letter to the agency dated March 2, 1999, complainant alleged that
the agency breached the settlement agreement, and requested that the
agency specifically implement the terms. Specifically, complainant
alleged that her GS-9 pay grade is not in line with recent cost of
living allowances.<2>
In its July 23, 1999 FAD, the agency concluded that it complied with
the settlement agreement. The agency determined that complainant
was reassigned to a Quality Assurance Specialist GS-1910-09 position
as required by the agreement; that thereafter, on November 21, 1996,
complainant was notified that the position was being abolished and that
complainant was offered, and accepted, a placement in the position
of Claims Examiner, GS-0990-07/00, in lieu of a reduction-in- force.
The agency noted that while in the Claims Examiner position, complainant
was eligible for two years of grade retention, which expired on December
8, 1998. Citing agency regulations, the agency concluded that complainant
was not eligible for within grade increases because her current rate of
pay exceeded the maximum step of the grade of her current position.
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, complainant contends that the agency breached the
settlement agreement, entered on May 3, 1995, when it failed to pay her
the full GS-9 pay grade. We find, however, that the language of the
agreement did not obligate the agency to pay complainant at the GS-9
level indefinitely. Specifically, the agreement required the agency
to reassign complainant to the Quality Assurance Specialist position.
The record contains a copy of a �Notification of Personnel Action�
showing that on May 23, 1995, complainant was reassigned from a Supply
Technician position to the Quality Assurance Specialist position at
the GS-9 level. Therefore, we find that the agency complied with the
agreement by placing complainant in the GS-9 position addressed in
provision 3a of the agreement.
The record also contains a letter to complainant, dated November 21, 1996,
wherein the agency informed her that due to a �current reorganization and
reduction in the Department of Logistics,� the GS-9 position addressed
in provision 3a was abolished. Complainant's subsequent placement into
a Claims Examiner position in lieu of a reduction-in-force and any
reduction in the full GS-9 pay grade that occurred as a consequence
of the aforementioned agency reorganization and her acceptance of a
position in lieu of a reduction-in-force, cannot be construed as a
breach of the settlement agreement at issue in the instant appeal.
The Commission has held that a settlement agreement that places a
complainant into a specific position, without defining the length of
service or other elements of the employment relationship, will not
be interpreted to require the agency to employ the complainant in the
identical job specified forever. See Parker v. Department of Defense,
EEOC Request No. 05910576 (August 29, 1991); Papac v. Department of
Veterans Affairs, EEOC Request No. 05910808 (December 12, 1991); Elliott
v. United States Postal Service, EEOC Appeal No. 01970474 (August 27,
1997). In the present case, the subsequent placement of complainant in
another position six months after the placement pursuant to the agreement,
was an action outside the scope of the agreement and was not a breach.
Accordingly, the agency's decision was proper and is hereby AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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 (S0900)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
January 8, 2001
__________________
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 29 C.F.R. Part 1614 in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.
2We note that prior to the instant claim of breach, complainant alleged
that the agency violated the May 3, 1995 settlement agreement when it
failed to reimburse her postage fees and pay her sick leave. This earlier
matter was addressed by the Commission in Worrall v. Department of the
Army, EEOC Appeal No. 01956415 (December 8, 1995).