01a00456
06-30-2000
Zoe McDonald, Complainant, v. Rodney E. Slater, Secretary, Department of Transportation, Agency.
Zoe McDonald, )
Complainant, )
)
v. ) Appeal No. 01A00456
) Agency No. DOT-2-98-138
Rodney E. Slater, )
Secretary, )
Department of Transportation, )
Agency. )
____________________________________)
DECISION
Complainant filed a timely appeal with this Commission from a final
decision (FAD) by the agency dated September 24, 1999, finding that
it was in compliance with the terms of the November 3, 1998 settlement
agreement into which the parties entered.<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:
(1) Recent short and long term assignments which have been agreed upon
are projects that the [complainant] is comfortable with but there are no
guarantees regarding future projects other than they involve strategic
or corporate policy and planning.
(2) Supervisor [A] and employee will determine future developmental
opportunities (details, training, travel) based upon the needs of the
organization, employee qualifications and strengths, and to the extent
possible, the interests of the employee. The individual development plan
(IDP) is a vehicle for career goal formulation.
(3) [Complainant] is encouraged to attend meetings, participate in
ARA-wide teams and form liaisons with internal/external organizations to
further the AIT-100 mission. [. . .] Supervisor [A] strongly supports
proactive initiatives, however, such activities should not have a negative
impact upon ongoing job assignments.
(4) [Complainant] shall withdraw in writing the ongoing EEO complaint
in Nov, 1998.
No retaliation shall be effected as a result from this agreement.
Upon request, the ERS process is available to review the terms and
status of this agreement in six months following the date of signature.
By letter to the agency dated April 16, 1999, complainant alleged that
the agency was in breach of the settlement agreement, and requested that
the agency specifically implement its terms. Specifically, complainant
alleged, in essence, that: (1) work assignments were never agreed
upon between herself and Supervisor A; (2) no training or development
agreements were made; (3) although complainant completed an IDP with a
listing of training courses in August 1998, Supervisor A never endorsed
or supported the IDP or provided direction for training and development;
(4) no performance plan or appraisal was issued for 1998, a performance
plan was not provided until she was assigned a new supervisor in June
1999; (5) the six-month evaluation of the settlement agreement never
took place; (6) the agency failed to take any action with regards to her
claim of a breach in March 1999; and (7) Supervisor A and the Director
retaliated against her when they made numerous and continuous personal and
professional attacks against her, specifically to reassign and terminate
her employment.
In its September 24, 1999 FAD, the agency concluded that it was in
compliance with the settlement agreement. In support of its conclusion,
the agency noted that (1) complainant was currently the focal point for
the agency's IT policy and direction; specifically, complainant has the
lead for developing the agency's policy on internet use and is responsible
for the development of an agency data standard/modeling process; (2)
with regard to training, complainant attended a 30-day refresher course
in mediation in February of 1999; (3) complainant recently traveled to
California to attend a Data Modeling Meeting where she met with world
class experts on data modeling; (4) complainant is an active member
of the NAS Information Architecture Committee, an agency-wide group on
data management. Complainant also participates in the agency's mediation
program. The agency conceded that complainant did not have an IDP
at the time of the FAD, and that all Office of the Chief Information
Officer employees, which included complainant, where required to a have
a signed performance plan in place by June 20, 1999.
By document dated August 2, 1999, the agency requested additional
information from complainant necessary to further process complainant's
breach allegation. By letter date August 4, 1999, complainant responded
to the agency's request in which she alleged that the agency took
additional efforts to discriminate against her when they refused to
provide her with a performance plan, appraisal, training/development plan,
and technical assignments/work.
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 record supports the agency's conclusion that it
is in compliance with the settlement agreement. As stated by the agency,
the agreement did not state that the agency was required to provide
a performance plan, appraisal, training/development plan, technical
assignment or work. Both management and complainant were to develop
short and long term assignments based upon the needs of the organization.
An IDP was to be used as a career development vehicle. There was no
specific language requiring that one be developed. Because the agreement
did not explicitly express the intent to implement the objectives raised
by the complainant on appeal, we find that she failed to show how this
portion of the settlement agreement was breached.
With regard to complainant's argument that the six-month evaluation of
the settlement agreement never took place, the agreement explicitly states
that this evaluation was to take place �in six months following the date
of signature� and was to be �requested.� Even assuming complainant's
April 16, 1999, letter requesting that her EEO complaint be reinstated
constituted a �request� to review the �terms and status� of the settlement
agreement, six months had not yet elapsed from the date the agreement
was signed. Because the agreement did not express an intent to review
the agreement before six months has elapsed and without being requested,
we find that complainant has failed to show how this portion of the
settlement agreement was breached.
With regard to complainant's alleged acts of reprisal, the Commission has
held that a complaint which alleges reprisal or further discrimination
in violation of a settlement agency's "no reprisal" clause, is to be
processed as a separate complaint and not as a breach of settlement. See
Bindal v. Department of Veterans Affairs, EEOC Request No. 05900225
(August 9, 1990); 29 C.F.R. � 1614.504(c).<2> In light of the above,
we affirm the agency's final decision.
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).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S1199)
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:
June 30, 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 after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
Equal Employment Assistant 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.
2 Inasmuch as complainant identified other incidents of alleged
discrimination, she must initiate EEO counseling regarding any new
allegations within 15 days after he receives this decision, if she wishes
to pursue them and he has not already done so. The agency is advised
that if complainant seeks EEO counseling regarding any new allegations
raised on appeal within the above 15-day period, the date complainant
filed the appeal statement in which he raised these allegations shall
be deemed to be the date of the initial EEO contact, unless complainant
previously contacted an EEO Counselor regarding these matters. If there
has been a previous contact, the earlier date would serve as the EEO
counselor contact date. Qatsha v. Department of the Navy, EEOC Request
No. 05970201 (January16, 1998); Parker v. Department of the Army, EEOC
Request No. 05960025 (August 29, 1996).