01a43893
02-24-2005
Carole Marsh, Complainant, v. Gordon R. England, Secretary, Department of the Navy, Agency.
Carole Marsh v. Department of the Navy
01A43893
February 24, 2005
.
Carole Marsh,
Complainant,
v.
Gordon R. England,
Secretary,
Department of the Navy,
Agency.
Appeal No. 01A43893
Agency Nos. DON 00-63110-002 and DON 01-63110-001
DECISION
Complainant filed an appeal with this Commission from a final decision
by the agency dated April 21, 2004, finding that it was in compliance
with the terms of the February 14, 2002 Settlement Agreement into which
the parties entered.
The February 14, 2002 Settlement Agreement provided, in pertinent part,
that:
B. (2) To return the duties of Contract Administrator to [complainant]
on the T-45 contract and to inform the Contractor [complainant] is the
point of contact for the contract.
The settlement agreement also provided that complainant would receive
$1,750 in attorney's fees, $5,550 in medical expenses, $10,000 for
emotional distress, 140.17 hours of sick leave, and 45.6 hours of
annual leave. Complainant is not asserting that the agency breached
any provision apart from provision B(2) of the settlement agreement.
By letter dated October 28, 2003, complainant alleged that the agency was
in breach of the February 14, 2002 Settlement Agreement, Specifically,
complainant alleged that she learned on September 15, 2003, from her
Supervisor, that the administration of the T-45 contract had been
delegated to the Defense Contract Management Agency (DCMA), effective
October 1, 2003. Complainant states that the delegation of the T-45
contract to DCMA restricts her signature authority and violates the
agreement she entered into with Chief of Naval Air Training (CNATRA).
The Chief of Naval Air Training responded to complainant's allegation
of non-compliance by letter dated November 26, 2003. According to
the Chief, the T-45 contract would no longer be delegated to CNATRA.
Rather, the T-45 contract would be delegated to DCMA. DCMA would then
sub-delegate Administrative Contract Officer (ACO) authority to CNATRA.
The Chief indicated that the sub-delegation of ACO authority from DCMA
to CNATRA does not impact complainant's job duties or responsibilities.
The Chief states that the sub-delegation is an administrative change,
that by itself, will have no immediate affect on complainant's position
description and grade level.
By letter dated January 14, 2004, complainant stated that all contract
administration functions are performed by the ACO at DCMA located in
either Birmingham, Alabama or Indianapolis, Indiana. Complainant stated
that the sub-delegation letter dated September 22, 2003, reads that
as sub-delegated ACO will have the authority to administer the T-45
contract for day to day functions, write modifications, letters and
review invoices without signature authority. Complainant states that
she has not performed any of the above tasks and her primary function
is to receive, evaluate and send appropriate electronic mail messages
from the class desk to the contractor. Complainant states that she
has no visibility into what is actually happening with the contract or
what the contractor is charging for over and above work. Complainant
states that the T-45 contractor rarely calls or notifies her of action.
Complainant states that Naval Air Systems Command (NAVAIR) is in contact
with the contractor and has obligated CNATRA funds without her knowledge.
In its decision dated April 21, 2004, the agency advised complainant
that her allegations concerning breach of the terms of the February 14,
2002 Settlement Agreement have been reviewed and it has been determined
that the allegations have not been substantiated. The agency incorporated
the Chief's November 26, 2003 letter into the final decision.
On appeal, complainant alleges that the agency has breached the
February 14, 2002 Settlement Agreement by allowing NAVAIR to delegate
the administration of the T-45 to DCMA. Complainant states that the
T-45 Procuring Contracting Officer, contract administration letter of
delegation, names ACOs in the DCMA Birmingham and Indianapolis offices
as the contractors' main points of contact as opposed to complainant.
Complainant states that she has lost authority to administer the contract,
has lost authority to communicate with employees as it relates to the
contract, and that other personnel have been advised to bypass her
authority regarding decisions on the T-45 contract.
The agency argues that complainant is currently a Contract Administrator
on the maintenance contract for the T-45 airplane and the contractor
employees recognize that complainant is the point of contact for the
contract. The agency argues that complainant is assigned the same tasks,
although she no longer has signatory authority for her work products in
some instances. The agency noted that at the time complainant signed the
February 14, 2002 Settlement Agreement there was a different contracting
agency. Once the contract ended on September 2003, two new contracts for
the T-45 CLS were issued. Company A won the contract for the airframe
CLS and Company B won the contract for the engine CLS. On September
22, 2003, DCMA issued a letter of delegation to CNATRA delegating the
bulk of the T-45 airframe CLS contract administration functions with
some limitations and clarifications. On September 23, 2003, the agency
delegated administrative contract authority for the T-45 engines CLS to
DCMA in Indianapolis, with the potential for re-delegation of certain
authorities to CNATRA that were in CNATRA's particular area of expertise.
On September 26, 2003, DCMA issued a letter of delegation to CNATRA
delegating the bulk of the T-45 airframe CLS contract administration
functions with some limitations and clarifications. The agency states
that complainant now has a different set of delegations and authorities
than she had when the February 14, 2002 Settlement Agreement was signed
and she wants the agreement to mean that the agency would not change or
modify her work assignment or level of authority.
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).
In the instant case, we find that the agency has not breached provision
B(2) of the February 14, 2002 Settlement Agreement. The February 14,
2002 Settlement Agreement provided that the agency would return the
duties of Contract Administrator to complainant on the T-45 contract
and would inform the contractor that complainant is the point of
contact for the contract. The February 14, 2002 Settlement Agreement
did not provide that complainant would be responsible for the same job
duties, have the same level of authority and receive the same types of
assignments without the possibility of any change. The Commission has
held that if a settlement agreement did not include specific terms of
the employment relationship which could have been agreed upon, it would
be improper to interpret the reasonable intentions of the parties as
binding the agency to terms thereof forever. See Parker v. Department
of Defense, EEO Request No. 05910576 (August 30, 1991). Upon review,
we find that the agency did return the duties of Contract Administrator
to complainant on the T-45 contract and notified the contractors of such.
Complainant is still the Contract Administrator and the subsequent new
contract which has changed some aspects of complainant's job duties did
not constitute a settlement breach. The agency's decision finding that
it did not breach the February 14, 2002 Settlement Agreement 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
February 24, 2005
__________________
Date