Gail M. White Complainant,v.Louis Caldera, Secretary, Department of the Army, Agency.

Equal Employment Opportunity CommissionNov 9, 2000
01992807 (E.E.O.C. Nov. 9, 2000)

01992807

11-09-2000

Gail M. White Complainant, v. Louis Caldera, Secretary, Department of the Army, Agency.


Gail M. White v. Department of the Army

01992807

November 9, 2000

.

Gail M. White

Complainant,

v.

Louis Caldera,

Secretary,

Department of the Army,

Agency.

Appeal No. 01992807

Agency Nos.BQECF09508F0104

BQECF09703H0120

BQECF09708H0230

DECISION

Complainant filed a timely appeal with this Commission from a final

decision (FAD) by the agency dated January 19, 1999, finding that it was

in compliance with the terms of the Settlement Agreement dated January

29, 1998 into which the parties entered.<1> 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:

[Section] 5.

f. To ensure that within a period of time not to exceed six (6) months,

the following will occur: that the Director, Directorate of Community

Activities (DCA), will submit for classification and grading to the Chief,

Position Management & Classification Division, Directorate of Civilian

Personnel, his recommendation for a promotion of the complainant's

position within DCA to GS-07; that the Chief, Position Management &

Classification Division, DCP, will submit the classification advisory and

DCA's recommendation to the installation's Position Management Review

Board; that the Board will render its recommendation and the final

decision of the installation commander or his designee in accordance

with applicable civilian personnel rules and local policy.

g. If the recommendation to upgrade [complainant's] position within DCA

is approved, the Agency agrees that the upgrade shall be permanent.

h. If the recommendation to upgrade [complainant's] position in DCA is

not approved, the Director, DCA, shall have the opportunity to resubmit

his recommendation to the Position Management Review Board.

6. [Complainant], agrees to the following:

c. [Complainant] agrees that this agreement does not represent a

guarantee or a promise on the part of the Agency that the Position

Management Review Board or the Installation Commander will approve

the recommendation to upgrade her position within DCA.

By letter to the agency dated September 9, 1998, complainant alleged

that the agency was in breach of the settlement agreement, and requested

that the agency implement its terms. Specifically, the complainant

alleged that the agency failed to upgrade her position to a Management

Assistant GS-7 within six months of the date of the settlement agreement.

She further contends that the Directorate of Civilian Personnel (DCP)

determined that her position should be classified as a GS-7 Management

Assistant and that having determined this, she should be promoted on a

permanent basis.

In its final decision dated January 19, 1999, the agency denied that a

breach of the settlement agreement had occurred. The agency concluded

that although DCP had submitted its recommendation that the promotion

be approved, the Position Management Review Board did not approve the

promotion but recommended to the Deputy Commanding General that the

complainant be retained in her current position, Secretary (Office

Automation) GS-318-06. The agency further concluded that although it

did not meet the time requirements of the settlement agreement, it was

in substantial compliance and that the complainant did not show how she

had been harmed by the delay.

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 determining the intent of the parties, 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 (5th Cir. 1984).

In the instant case, the settlement agreement at paragraph 5f. clearly

indicates that the Position Management Review Board (Board) was

charged with the decision whether to approve the complainant for

a permanent promotion. The Director for Community Activities (DCA)

along with the Director of Civilian Personnel, were required to make the

recommendation that the complainant be promoted to the Board. The record

indicates the DCA as well as the Director for Civilian Personnel made

the recommendation, but that the Position Management Review Board did

not approve the complainant for a promotion. The Board's approval was

necessary for the complainant's promotion to become permanent. Therefore,

the complainant's contention that the approval of her promotion by the

Director for Civilian Personnel should result in a permanent promotion,

is not correct and not a fair reading of the plain language of parties'

settlement agreement.

The complainant's contends that the agency failed to meet the time

requirements of their agreement and was in breach of the agreement.

Although the complainant has demonstrated the agency technically

breached the agreement , we find the agency fulfilled its obligations

within 3 months of the time compliance was required and as such there

was substantial compliance with the agreement. See Baron v. Department

of Treasury, EEOC Request No. 05930277 (September 30, 1993) (Technical

breach of time requirement but agency fulfilled its material obligations

and no finding of breach). The agency fulfilled its obligation to

submit the complainant's documentation in support of a recommendation

for a permanent promotion to the appropriate decision-making body.

The complainant failed to show that the agency's failure to comply with

the time requirements affected the complainant's chances of promotion

or otherwise materially affected the terms of the settlement agreement.

See Ramirez v. United States Postal Service, EEOC Request No. 05930283

(August 12, 1993) (a breach which did not alter the purpose or effect of

the parties settlement agreement was found to be substantial compliance).

CONCLUSION

For the reasons stated above and based on the record as a whole, the

Commission concludes the agency's final decision that the parties'

settlement agreement was not breached, was correct and is AFFIRMED.

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 (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:

11/9/00

Date Carlton M. Hadden, Acting Director

Office of Federal Operations

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.