0120083239
02-26-2009
Donna J. Schafer, Complainant, v. Robert M. Gates, Secretary, Department of Defense, (Defense Logistics Agency), Agency.
Donna J. Schafer,
Complainant,
v.
Robert M. Gates,
Secretary,
Department of Defense,
(Defense Logistics Agency),
Agency.
Appeal No. 0120083239
Agency No. DLAF060158
DECISION
Complainant filed a timely appeal with this Commission from a final
decision (FAD) by the agency dated June 24, 2008, finding that it was in
compliance with the terms of the September 26, 2007 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 obligated the parties as follows:
(1b) Provide [complainant] priority consideration for the next GS-12
position within DAPS for which a job opportunity announcement will be
issued (accretions will not be considered); and
(1bii) In accordance with [complainant's] request, the position is
not located in Europe, Cuba; the States of California, New Mexico,
North Dakota, Texas, Utah, or Washington; or the District of Columbia
or within a 25 mile radius of the District of Columbia and;
(1biii) [Complainant] has not previously rejected three (3) priority
consideration offers1 for which Permanent Change Station (PCS)
reimbursement, including Real Estate Expenses, has been offered.
With regard to subparagraph 1b, [complainant] acknowledges DAPS is
under no obligation to create or otherwise establish a position at the
GS-12 level. With regard to Subparagraph 1biii, it is not DAPS intent
to restrict [complainant's] priority consideration to only those GS-12
Job Opportunity Announcements (JOAs) that contain PCS reimbursement.
Instead, DAPS is acknowledging the possibility of Government, Department
or Agency-wide "freezes" on the use of PCS which are beyond DAPS'
control. Should such an event occur, DAPS would offer [complainant]
priority consideration but, in the event [complainant] rejects the offer,
it would not count as one of the four offers. Absent an event beyond
DAPS' control, it is DAPS' intent to offer PCS on all GS-12 JOA's until
it has satisfied its obligation under Subparagraph 1biii.
By letter to the agency dated May 13, 2008, complainant alleged that the
agency was in breach of the settlement agreement, and requested that the
agency specifically implement its terms. Complainant alleged that the
agency failed to properly reimburse her moving expenses in accordance
with the agreement. Specifically, complainant alleges that the agency
breached the agreement when it did not reimburse her for the loss she
incurred in selling her home in order to relocate to for her promotion
to the GS-12 position.
In its June 24, 2008 FAD, the agency concluded that it fully complied
with the agreement. Specifically in its opposition to complainant's
appeal, the agency indicates that it performed its obligations under the
agreement with respect to providing complainant priority consideration
and promoting her to the next GS-12 position within the agency.
The agency indicates also that it paid complainant's attorney's fees
and an additional $75,000.00 in accordance with the agreement between
the parties. The agency argues that no where in the plain language
of the agreement is the agency obligated to reimburse complainant for
losses she incurred in the sale of her home.
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 language of the agreement is plain
and unambiguous regarding the agency's obligation to reimburse complainant
in the context of a Permanent Change of Station. The Commission notes
that in complainant's statement on appeal, she indicates that since there
was no language defining "real estate expenses" she believed that she
would be reimbursed for the loss incurred from the sale of her home.
If complainant had intended a specific meaning regarding the term
"permanent change of station" as it relates to the sale of her home
and related moving expenses, she should have negotiated such terms into
the agreement.
In that regard, we find that the complainant has failed to demonstrate
that the agency breached the agreement as alleged. The agency's
determination that it complied with the settlement agreement is affirmed.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 77960,
Washington, DC 20013. 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 (S0408)
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 (Z1008)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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 26, 2009
__________________
Date
1 The record indicates that in an amendment signed by the parties
on October 30, 2007, the agency agreed to offer complainant priority
consideration for up to four (4) GS-12 vacancies within DAPS. The record
indicates further that the remainder of the agreement was unchanged by
the amendment to the settlement agreement.
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0120083239
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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