01a22727_r
03-19-2003
Barbrette S. Jones, Complainant, v. Donald H. Rumsfeld, Secretary, Department of Defense, (Defense Logistics Agency), Agency.
Barbrette S. Jones v. Department of Defense (Defense Logistics Agency)
01A22727
March 19, 2003
.
Barbrette S. Jones,
Complainant,
v.
Donald H. Rumsfeld,
Secretary,
Department of Defense,
(Defense Logistics Agency),
Agency.
Appeal No. 01A22727
Agency No. 020201
DECISION
Upon review, the Commission finds that the agency's decision not to
reinstate complainant's complaint of unlawful employment discrimination
that the parties had settled is proper. See 29 C.F.R. � 1614.504.
On March 21, 2001, the parties entered into a settlement agreement
resolving the complaint. The settlement agreement provided, in pertinent
part, that:
The complainant and management agree that the following are areas
of performance which demonstrate the ability to perform at the fully
successful level of a GS-2003-12, Supply Systems Analyst. The skills
are as follows:
In-depth, expert knowledge of distribution practices and systems within
a major application area (Receiving)
. . . .
Management (first line supervisor) will review all work assignments.
Complainant will be evaluated every three months on performance.
If complainant satisfactorily meets expected skill level she will be
promoted to a GS-12 at that time.
Management will provide a written determination on expertise at the end
of the six month period (Documentation will include whether or not work
was available.)
Management agrees to promote the complainant within six months to the
Supply Systems Analyst, GS-12, if complainant satisfactorily completes
expected skill level.
By letters dated September 21, 2001 and November 1, 2001, complainant
alleged that the agency breached the settlement agreement. Specifically,
complainant claimed that she was not evaluated every three months on her
performance. Complainant also claimed that she performed the assigned
GS-12 projects in a fully successful manner; and she should be promoted
to the GS-12 level position.
On March 28, 2002, the agency responded that it did not breach the
settlement agreement. Specifically, the agency stated that complainant
was evaluated seven times during the period March - June 2001, and during
the period July - September 2001, she was evaluated in September 2001.
The agency indicated that on September 20, 2001, complainant was provided
a written determination of expertise in respect to complainant's ability
to perform at a fully successful level of GS-12, Supply Systems Analyst.
Therein, complainant's supervisor stated that complainant was assigned to
two projects in accordance with the settlement agreement. The supervisor
determined that of eight basic skill sets required of expert GS-12 level,
two had been consistently demonstrated as acceptable, three had been
questionable or very inconsistent, and three had not been met. Based on
this, management decided not to promote complainant to GS-12 target level.
On appeal, complainant, admitting being evaluated seven times during the
six-month period, indicates that she was doing a very successful job
and her supervisor did not give her any reason that she was not doing
a good job.
The Commission has held that settlement agreements are contracts between
the complainant and the agency and it is the intent of the parties
as expressed in the contract, and not some unexpressed intention, that
controls the contract's construction. Eggleston v. Department of Veterans
Affairs, EEOC Request No. 05900795 (August 23, 1990). In addition, the
Commission generally follows the rule that if a 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 v. Building Engineering Services,
730 F.2d 377 (5th Cir. 1984).
Upon review, the Commission finds that complainant was evaluated every
three months on her performance and was given a written determination
on expertise at the end of the six-month period on September 20, 2001.
Based on complainant's work performance, management determined that she
had not satisfactorily completed the expected skill level of a GS-12, and
decided not to promote her to the Supply Systems Analyst, GS-12 position.
Although complainant disagrees with management's determination, the
Commission finds that the settlement agreement provided that her work
performance was to be evaluated by management, and based on this,
management decided not to promote her to the GS-12 level position.
The Commission notes that the settlement agreement did not expressly
guarantee complainant's promotion to the GS-12 level.
Accordingly, the agency's decision is hereby 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
March 19, 2003
__________________
Date