01980295
10-31-2000
Deborah M. Hill, Complainant, v. Lawrence H. Summers, Secretary, Department of the Treasury, Agency.
Deborah M. Hill v. Department of the Treasury
01980295
October 31, 2000
.
Deborah M. Hill,
Complainant,
v.
Lawrence H. Summers,
Secretary,
Department of the Treasury,
Agency.
Appeal No. 01980295
Agency Nos. 97-1124, 97-1065, 97-1174 & 97-0022B
DECISION
Complainant timely appealed the agency's decision not to reinstate her
complaints of unlawful employment discrimination that the parties had
settled.<1> See 29 C.F.R. �� 1614.402(a), 1614.405 and 1614.504.
The record indicates that on April 18, 1997, the parties resolved
complainant's complaints by entering into a settlement agreement,
which provided, in pertinent part, that complainant would receive the
following:
A permanent position external to the Office of Currency Standards;
Transfer to the Office of Management Control;
Removal of all letters of reprimands, warnings, and negative information
developed as an offspring of the above referenced EEO cases;
Assurance that complainant will be free of any future retaliation;
A Management Analyst Position Description GS-343-9 and a Performance Plan;
and
A performance evaluation after a period of ninety (90) days.
By letters dated June 27, 1997, July 24, 1997, and September 17
and 23, 1997, complainant alleged that the agency breached the
settlement agreement. Specifically, complainant indicated that her
90-day evaluation was issued to her in an untimely manner on September
17, 1997. Complainant also indicated that effective June 9, 1997, her
former managerial official was transferred to the Office of Management
Control after her transfer to the same office on April 21, 1997, under the
settlement agreement. Complainant further claimed that her new GS-343-9
position description received on September 17, 1997, was different from
the position description she previously received on April 21, 1997, i.e.,
the new position description did not have promotion potential to a GS-12.
Complainant stated that she was assigned to the duties of the GS-343-12
Management Analyst position after her transfer and was qualified for
the GS-343-11 Management Analyst position.
In its final decisions, dated September 23, 1997 and October 7, 1997,
the agency stated that it did not breach the settlement agreement.
The agency indicated that complainant's former managerial official was
serving as Acting Chief of the Office of Management Control at the time
of the settlement agreement, and his subsequent permanent reassignment
to that position did not constitute a settlement breach. The agency
stated that complainant received the GS-343-9 Management Analyst Position
Description, a Performance Plan, and a �90-day evaluation� under the
settlement agreement. The agency noted that complainant's claim that her
new position description appeared to be altered constituted a subsequent
act of discrimination and advised complainant to contact an EEO Counselor
if she wished to further process this new matter.
On appeal, complainant, reiterating arguments she previously made,
contends that she has not yet received her Performance Plan under the
settlement agreement.
EEOC Regulation 29 C.F.R. � 1614.504 provides that if the complainant
believes that the agency failed to comply with the terms of a settlement
agreement, the complainant should notify the Director of Equal Employment
Opportunity, in writing, of the alleged noncompliance with the settlement
agreement, within thirty (30) days of when the complainant knew or should
have known of the alleged noncompliance. The complainant may request that
the terms of the settlement agreement be specifically implemented or,
alternatively, that the complaint be reinstated for further processing
from the point processing ceased.
The agency shall resolve the matter and respond to the complainant,
in writing. If the agency has not responded to the complainant, in
writing, or if the complainant is not satisfied with the agency's attempt
to resolve the matter, the complainant may appeal to the Commission for
a determination as to whether the agency has complied with the terms of
the settlement agreement or final decision.
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). The Commission has followed this rule
when interpreting settlement agreements. The Commission's policy in
this regard is based on the premise that the face of the agreement best
reflects the understanding of the parties.
Complainant alleged that the agency breached item (4) of the settlement
agreement when it assigned her former managerial official to the position
of the Chief of the Office of Management Control. However, the Commission
finds that the settlement agreement does not provide for the identified
official's assignment, and it is beyond the scope thereof. With regard
to complainant's claim of reprisal or further discrimination on the part
of the agency in violation of the settlement agreement, the Commission
finds that the matter should be processed as a separate complaint under
29 C.F.R. � 1614.106, rather than as a claim of noncompliance with a
settlement agreement. Complainant is hereby advised to contact an EEO
Counselor with regard to this matter if she wishes to further pursue
the matter. See 29 C.F.R. �� 1614.101(b) and 1614.105(a).
With regard to item (5), the record indicates that complainant received
her GS-349-9 Management Analyst Position Description on April 21, 1997 and
September 17, 1997. However, complainant alleged that the September 17,
1997 position description was different from the April 21, 1997 position
description, and her position no longer had promotional potential to
the GS-12 level position. Upon review, the Commission finds that the
settlement agreement does not provide for her promotion, and it is beyond
the scope thereof. Complainant also alleged that she did not receive
a Performance Plan in accordance with item (5). Specifically, in her
letter dated September 17, 1997, complainant stated that in June 1997,
her supervisor asked her to sign her Performance Plan, and later told
her that he took that to the Chief of the Office of Management Control
for his approval, but the Chief told the supervisor that he could not
sign it. Although the agency, in its decision, stated that it issued
complainant with the Performance Plan at issue, such contention is
not supported by any evidence in the record. Furthermore, on appeal,
complainant, uncontested by the agency, contends that she has not received
her Performance Plan. Therefore, we find that the agency has failed to
comply with the Performance Plan portion of item (5) of the settlement
agreement.
Complainant claimed that the agency breached item (6) of the agreement
because she did not receive her 90-day performance evaluation until
September 17, 1997. There is no requirement in item (6) that the
performance evaluation be issue within a certain time limit. The issuance
of the evaluation five months after the agreement was entered into was
accomplished in a reasonable amount of time and, therefore, does not
constitute breach. See Northen v. United States Postal Serv., EEOC
Request No. 05950774 (July 24, 1997).
In addition, it is noted that in accordance with items (1) and (2) of
the settlement agreement, complainant was transferred from the Office
of Currency Standards to the Office of Management Control on April
21, 1997. It is further noted that complainant does not contest the
agency's compliance of item (3) of the settlement agreement.
Accordingly, the agency's decision finding no breach of the settlement
agreement with regard to items (1), (2), (3), and (4), a portion of
item (5), concerning complainant's position description, and item (6)
is AFFIRMED. The agency's decision finding no breach of the settlement
agreement with regard to the remaining portion of item (5), concerning
complainant's Performance Plan, is REVERSED and the subject matter is
REMANDED to the agency for implementation of the agreement.
ORDER
The agency is ORDERED to specifically enforce the portion of item (5)
of the April 18, 1997 settlement agreement concerning complainant's
Performance Plan. The agency shall, within 30 calendar days of the date
this decision becomes final, issue complainant her Performance Plan,
in accordance with item (5) of the settlement agreement. The agency
shall provide documentation of the specific enforcement of the subject
agreement to the Compliance Officer as referenced herein.
ATTORNEY'S FEES (H0900)
If complainant has been represented by an attorney (as defined by
29 C.F.R. � 1614.501(e)(1)(iii), he/she is entitled to an award of
reasonable attorney's fees incurred in the processing of the complaint.
29 C.F.R. � 1614.501(e). The award of attorney's fees shall be paid
by the agency. The attorney shall submit a verified statement of fees
to the agency -- not to the Equal Employment Opportunity Commission,
Office of Federal Operations -- within thirty (30) calendar days of this
decision becoming final. The agency shall then process the claim for
attorney's fees in accordance with 29 C.F.R. � 1614.501.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0900)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the complainant. If the agency does not comply with the Commission's
order, the complainant may petition the Commission for enforcement of
the order. 29 C.F.R. � 1614.503(a). The complainant also has the right
to file a civil action to enforce compliance with the Commission's order
prior to or following an administrative petition for enforcement. See 29
C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g). Alternatively,
the complainant has the right to file a civil action on the underlying
complaint in accordance with the paragraph below entitled "Right to File
A Civil Action." 29 C.F.R. �� 1614.407 and 1614.408. A civil action
for enforcement or a civil action on the underlying complaint is subject
to the deadline stated in 42 U.S.C. � 2000e-16(c)(Supp. V 1993). If the
complainant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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 (T0900)
This decision affirms the agency's final decision/action in part, but it
also requires the agency to continue its administrative processing of a
portion of your complaint. 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 on both that portion
of your complaint which the Commission has affirmed and that portion
of the complaint which has been remanded for continued administrative
processing. In the alternative, you may file a civil action after
one hundred and eighty (180) calendar days of the date you filed your
complaint with the agency, or your appeal with the Commission, until
such time as the agency issues its final decision on your complaint.
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
October 31, 2000
__________________
Date
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:
__________________
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 29 C.F.R. Part 1614 in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.