01a51943_r
08-09-2006
Caroline Anderson, Complainant, v. Robert J. Battista, Chairman, National Labor Relations Board, Agency.
Caroline Anderson v. National Labor Relations Board
01A51943
August 9, 2006
.
Caroline Anderson,
Complainant,
v.
Robert J. Battista,
Chairman,
National Labor Relations Board,
Agency.
Appeal No. 01A51943
Agency No. SFO-04-06
DECISION
The record reveals that on July 16, 2004, complainant and the agency
entered into a settlement agreement regarding complainant's EEO complaint.
The settlement agreement provides in relevant part:
1. Region 20 will re-issue OM 03-78 to all members of the Region 20
support staff.
2. Region 20 will consider requests from [Complainant] to train or serve
as a backup on a key desk in the same manner it has considered, and will
continue to consider, requests from other members of the support staff
to train or serve as backup on key desks, provided that [Complainant]
conveys her requests to Region 20 management.
3. The key desks are as follows: Secretary to the RD; Secretary to
the ARD; Secretary to the RA; Secretary to the DRA; Compliance Unit;
Election Unit; Docket Unit; and Reception.
By letters dated August 23, 2004 and September 24, 2004, complainant
claimed that the agency breached the settlement agreement given that she
has not served as a backup for a key desk or received consideration for
training in the same manner as her predecessor. According to complainant,
her assignment to the Docket Unit precludes her from taking full advantage
of training opportunities. Complainant stated that on August 19, 2004,
she learned that she had not been selected for the Secretary to the
Regional Attorney position. Complainant stated that the selectee was an
individual who received training, advancements and facilitated efforts of
promotional opportunities that she did not receive. Complainant claimed
that she was not considered for the position in reprisal for her filing of
the complaint that was resolved by the settlement agreement. Complainant
requested that her complaint be reinstated for further processing.
The agency issued a final action dated November 9, 2004, finding no breach
of the settlement agreement. The agency stated that complainant has not
asserted or provided evidence indicating that the Region has failed to
reissue OM-03-78 to all Region 20 Support Staff employees. The agency
stated that there is no assertion or evidence showing that the Region has
failed to consider any request complainant made to train or serve as a
backup on a key desk. According to the agency, complainant provided no
evidence that she submitted a request to any Region 20 manager to train
or serve as backup on a key desk since July 16, 2004, the date that the
settlement agreement was executed.
On appeal, complainant contends that the agency ignored or was
nonresponsive to her requests for consideration for the Regional
Attorney's Secretary position, to serve as backup for the Assistant
Regional Director's Secretary, to serve as an Elections Assistant and
to take over a team of Board Agents. Complainant argues that unlike
other support staff, she has been denied the opportunity to take full
advantage of training for key desks that lead to promotions. According to
complainant, she was told on July 16, 2004, that her interest in training
for the Assistant Regional Directors Secretary position would be passed
on to the Assistant Regional Director and that the Assistant Regional
Director Secretary would train her the following week. Complainant states
that none of these actions occurred.
In response, the agency asserts that complainant's application for
a promotion to a vacant secretarial position does not constitute
an expression of interest to train or serve as a backup for another
secretarial position as provided in the settlement agreement. The agency
stated that complainant was considered for training on the Assistant
Regional Director's secretarial desk in compliance with the settlement
agreement. The agency states with regard to complainant's request to
assist the Team of Board Agents that this was not a key desk under
the terms of the settlement agreement. Further, the agency asserts
that complainant's request to assist in the Election Unit was sent,
reviewed and considered by management on December 20, 2004, after the
final action was issued. The agency notes that on January 7, 2005,
complainant filed a new complaint which addresses all of the facts
covered in her breach claim.
The Commission has consistently 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, 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, 381 (5th Cir. 1984).
The Commission finds that the record does not support complainant's
claim of breach with regard to not being selected for the position of
Secretary to the Regional Attorney. The settlement agreement provides
for consideration of complainant's requests to train or serve as a
backup on a key desk. The agreement does not address instances where
complainant is seeking promotion to a vacant position. With regard
to complainant's request for training for the position of Secretary to
the Assistant Regional Director, the record indicates that complainant
received consideration for the training and in fact training was supposed
to be scheduled, but that complainant informed the Secretary to the
Assistant Regional Director that she was too busy with her docket
duties to schedule training. Therefore, the agency did not breach the
settlement with regard to complainant's request for training for the
position of Secretary to the Assistant Regional Director. As for the
denial of complainant's request to assist the Team of Board Agents,
this position is not referenced in the settlement agreement as one of
the key desks and thus no breach occurred. With regard to complainant's
request to assist in the Election Unit, the record indicates that this
request was made in December 2004, after the final action was issued.
The Commission finds that the alleged incidents at issue in the final
action do not constitute a breach of the settlement agreement.
The agency's decision finding no breach of the July 16, 2004 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
August 9, 2006
__________________
Date