01A21501_r
06-05-2002
Vicki J. Davis, Complainant, v. Gale A. Norton, Secretary, Department of the Interior, Agency.
Vicki J. Davis v. Department of the Interior
01A21501
June 5, 2002
.
Vicki J. Davis,
Complainant,
v.
Gale A. Norton,
Secretary,
Department of the Interior,
Agency.
Appeal No. 01A21501
Agency No. FWS-97-026R7
DECISION
Complainant filed a timely appeal with this Commission from a final
decision (FAD) by the agency dated December 5, 2001, finding that it was
in compliance with the terms of a July 24, 1997 settlement agreement.
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:
2(a) Transfer Aggrieved Person to a position at her current grade
and pay of Fish and Wildlife Biologist, GS-401-12, located at the Kenai
National Wildlife Refuge, Region 7 (Alaska), effective September 14, 1997.
Aggrieved person will not be required to serve a probationary period.;
The agency will pay for the Permanent Change of Station (move) and
other associated allowable costs, i.e., personal travel, shipping of
vehicle, moving of household goods, and up to 30 days temporary housing
in accordance with Federal Travel Regulations;
Aggrieved Person will retain Return Rights and Home Leave as originally
agreed when she transferred with the Service to Region 7;
(b) Credit Aggrieved Person's leave account with 49 hours sick leave
within 60 days after the execution of this agreement;
Credit Aggrieved Person with 7 consecutive weeks administrative leave
to be used beginning August 3, 1997, and ending September 21, 1997;
(c) Pay the Aggrieved Person a lump sum payment of $20,000 total within
60 days after the execution of this agreement;
(d) Guarantee that [a named Supervisor] will not be the Aggrieved
Person's immediate supervisor throughout her tenure in the Region 7,
Ecological Services, workforce;
(e) Instruct [the named Supervisor] to direct all requests for
employment references for the Aggrieved Person to the Assistant Regional
Director-Ecological Services;
(f) Provide the Aggrieved Person a minimum of two appropriate
career-development/training courses per year for two consecutive
fiscal years, starting with the Fiscal Year 1998 (October 1, 1997).
Aggrieved Person will need to request and apply through appropriate
supervisory channels.
By letter to the agency dated August 6, 2001, complainant's counsel
claimed that the agency breached the settlement agreement when on
July 18, 2001, complainant was advised by [Fish/Ecological Services
Supervisor] that effective October 1, 2001, the Service proposed
to reassign complainant to the Kenai Fishery Resource Office from
the Kenai National Wildlife Refuge.<1> Specifically, complainant
through her counsel claimed her reassignment under the settlement
agreement was intended to be permanent until complainant voluntarily
retired; resigned; sought reassignment or otherwise left the post.
Complainant's counsel claimed that complainant's reassignment violates
the settlement agreement. Complainant's counsel further claimed that
the agency paid for complainant's move to Kenai National Wildlife Refuge
because it was intended to be a permanent move. Complainant's counsel
asserted that all parties to the agreement intended that complainant's
transfer be permanent and without possibility for reassignment other
than at complainant's choice. The counsel additionally averred that
complainant continues to be subjected to ongoing retaliation since the
signing of the July 24, 1997 agreement.
In its December 5, 2001 decision, the agency found no breach of the
July 24, 1997 settlement agreement. Specifically, the agency concluded
that the settlement agreement did not state that complainant would
never be reassigned from the Kenai National Wildlife Refuge; and that
complainant was reassigned to the position that was the subject of the
settlement agreement for approximately four years. The agency found
that complainant's alleged ongoing retaliation constituted a new and
separate claim of discrimination that must be raised separately.
On appeal, complainant through her counsel argues that "it was
understood by all directly engaged in the negotiations that [complainant]
intended the placement to be permanent and without the possibility of
reassignment."
In response, the agency argues that there is nothing in the agreement
which indicates that the agency had continuing obligations to complainant
with regard to her duty station, other than to ensure that a specific
person not be assigned as her supervisor. The agency states "such a
term would be highly unusual and of questionable legality, since it
would be abrogating the ability of federal managers, and even Congress,
to control the appropriate placement of a federal employee.�
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).
The plain language of the agreement imposed upon the agency an affirmative
obligation to reassign complainant to a Fish and Wildlife Biologist
position located at the Kenai National Wildlife Refuge, effective
September 14, 1997. A review of the record reflects that the agency
complied with the term of the settlement agreement by placing complainant
in the subject position for approximately four years. The settlement
agreement did not provide a time limit on complainant's assignment
to the Kenai National Wildlife Refuge. 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 30, 1991);
Papac v. Department of Veterans Affairs, EEOC Request No. 05910808
(December 12, 1991); Elliott v. United States Postal Service, EEOC
Request No. 01970474 (August 27, 1997). Therefore, after careful review,
we find that the agency did not breach the settlement agreement.
In addition, regarding complainant's assertions that she has been
subjected to an ongoing retaliation after the signing of the July 24, 1997
agreement, we agree with the agency that this alleged ongoing retaliation
should be addressed as a separate complaint. If complainant wishes to
pursue these matters further, she is advised to contact an EEO Counselor,
if she has not yet done so. In this regard, we note that the record
contains a letter from complainant's counsel to the Commission, dated
April 17, 2002. Therein, counsel stated that complainant has initiated
a new complaint on March 21, 2002, based on alleged incidents of reprisal.
Accordingly, the agency's finding no breach of the July 24, 1997
settlement agreement was proper and is AFFIRMED.
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 (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
June 5, 2002
__________________
Date
1The record contains an agency letter to
complainant, dated July 18, 2001. Therein, complainant was apprized
that the reassignment was attributable to a regional reorganization,
and provided details relating to the nature of and reasons for the
reorganization.