0120060151
11-13-2006
Charline Logue, Complainant, v. Michael W. Wynne, Secretary, Department of the Air Force, Agency.
Charline Logue,
Complainant,
v.
Michael W. Wynne,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 01200601511
Agency No. 9R1M02035
DECISION
On September 20, 2005, complainant filed an appeal regarding the agency's
compliance with the terms of the January 31, 2003 settlement agreement
into which the parties entered. 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:
(1) A new evaluation will be made of the Complainant's qualifications
to serve in an engineering position. This evaluation will be requested
from the appropriate office of the Office of Personnel Management (OPM).
If such an evaluation cannot be obtained from OPM, an evaluation will
be obtained from another appropriate Air Force installation, but not an
installation where [S1] had served as Civilian Personnel Officer or where
[S2] had served in [a] supervisory engineering capacity. This is not
intended to derogate or, in any way, infer or suggest that [S1] or [S2]
acted in an improper or illegal manner but is instead intended to ensure
an absolutely objective evaluation of the Complainant's qualifications
to serve in an engineering position.
(2) Whether sent to OPM or to another appropriate Air Force
installation, [S1] will delegate the preparation of the request for
evaluation and the package of materials supporting the request for
evaluation to the Staffing Office of the Civilian Personnel Office.
That office will include in the package of materials whatever documents
it deems relevant for consideration in the evaluation process. In making
the request for a new evaluation, the Agency will direct the evaluating
office (whether OPM or another Agency installation) to disregard and
not consider any prior determinations made concerning the Complainant's
qualifications to hold an engineering position, regardless of whether
the prior determination was favorable or unfavorable to the Complainant.
The Complainant will be provided a copy of the request for an evaluation
and supporting package prior to its submission to either OPM or another
Air Force installation. The Complainant will have the right to add
documents to this package but not remove any from it. The submissions
made by the Complainant will be added to the package and will be clearly
indicated as her submission for evaluation.
. . .
(4) The Agency agrees to pay the sum of $3,750.00 as attorney's fees
in this case. This payment shall be made to [. . .], as attorney for
Complainant, and sent to his business address.
. . .
(7) The requirement to seek a new evaluation of the Complainant's
qualifications as stated above and the payment of attorney's fees will
be initiated within a reasonable period of time from the date of this
settlement agreement.2
Previously, in Charline Logue v. Department of the Air Force, EEOC Appeal
No. 01A33851 (February 3, 2004), the Commission considered complainant's
claim that the agency had breached the subject settlement agreement.
Therein, we determined that the record was inadequate to determine whether
breach had occurred, and ordered the agency to take the following actions
to document its compliance:
1. Send a written request to OPM for an evaluation of complainant's
qualifications to serve in an engineering position. The agency shall
also request that OPM respond to the agency's request (for an evaluation)
in writing.
2. Place evidence in the record showing that it has complied with
provision (4) (attorney's fees) of the settlement agreement.
The order also required the agency to issue a new determination of whether
breach of the settlement agreement of January 31, 2003, had occurred.
Thereafter, the agency issued a new decision dated July 16, 2004. In its
decision, the agency found that the agency had contacted OPM in writing
as required3, and that the Director of the Atlanta Services Branch (OPM),
responded as follows:
In the past, offices within OPM offered advisory opinions to agencies
regarding the evaluation of applicants' qualifications. However, in the
current environment in which agencies have extensive authority for making
and exercising decisions in the human resources arena, OPM offices are
only involved in this area when an agency requests our services through
reimbursable examining services.4
The agency's decision states that in subsequent correspondence with
OPM, the agency had requested that OPM reconsider the agency's request
for an advisory opinion, and that, ultimately, as of the date of the
agency's decision, no further response from OPM had been forthcoming.
The agency's decision further found that attorney's fees had been paid as
ordered and that no breach of the settlement agreement had occurred.5
By letter dated September 20, 2005, complainant notified the agency
that it had not fully complied with the settlement agreement in that the
agency had not yet obtained an evaluation of her qualifications from OPM.
Thereafter, the agency provided a response to complainant's allegations,
dated November 22, 2005, in which the agency explains that OPM had yet to
respond to the agency's repeated efforts to obtain an advisory opinion.
The agency advised that it had once again made a request for an advisory
opinion and that if no response was received by December 8, 2005, the
agency would consider OPM to have declined the agency's request and that
the agency would thereafter seek an opinion through an alternate method as
set forth in paragraph 1 of the January 31, 2003 settlement agreement.
On appeal, complainant claims that although OPM never refused to provide
the requested advisory opinion, the agency failed to provide OPM with
any deadlines by which to respond, so that as of December 2005, more
than a year after the agency claimed to have complied, the agency had
yet to obtain an evaluation of her qualifications as provided in the
settlement agreement.
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 initial response from OPM dated
March 3, 2004, explains that OPM no longer provides advisory opinions
regarding an applicant's qualifications as a matter of course to
agencies, but that such an opinion could be requested, provided that
OPM is reimbursed for its services. Although complainant would have
preferred that OPM evaluate her qualifications, we find nothing in the
plain language of the settlement agreement that requires the agency to
incur an expense in order to secure an advisory opinion from OPM.
We note that the record shows that by letter dated December 8, 2005, the
agency requested an evaluation of complainant's qualifications from the
agency's installation at Edwards Air Force Base in California. In that
request, the agency specifically directs the evaluating office to make its
determination regarding complainant's qualifications "independent of any
knowledge of prior determinations." A list of attachments accompanying
the agency's request indicates that documents submitted by complainant
were included in the package of materials for evaluation.6 The record
indicates that the evaluation was conducted as required by the settlement
agreement. Complainant admits in a statement dated February 17, 2006,
that an evaluation had been performed. We find that the agency has
substantially complied with the terms settlement agreement of January 31,
2003.
Accordingly, we AFFIRM the agency's determination that no breach
occurred.
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
November 13, 2006
__________________
Date
1 Due to a new data system, this case has been redesignated with the
above referenced appeal number.
2 S1 and S2 are agency officials identified by name in the original
January 31, 2003 settlement agreement.
3 The record shows that agency's request to OPM is dated February 19,
2004.
4 OPM's responsive memorandum to the agency is dated March 3, 2004.
5 We note that complainant sought enforcement of the Commission's order in
EEOC Appeal No. 01A33851. That petition is being adjudicated separately
in EEOC Petition No. 0420060044.
6 We further observe that in response to complainant's petition for
enforcement (EEOC Petition No. 0420060044), the agency submitted evidence
that the attorney's fees had been paid as agreed.
??
??
??
??
2
01A60151
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
6
0120060151