01A05845_r
09-04-2001
Gina Trovarelli, Complainant, v. Donald H. Rumsfeld, Secretary, Department of Defense, (Defense Logistics Agency), Agency.
Gina Trovarelli v. Department of Defense (Defense Logistics Agency)
01A05845
September 4, 2001
.
Gina Trovarelli,
Complainant,
v.
Donald H. Rumsfeld,
Secretary,
Department of Defense,
(Defense Logistics Agency),
Agency.
Appeal No. 01A05845
Agency Nos. TA-97-008, TA-97-032
DECISION
Complainant filed a timely appeal with this Commission from a final
decision by the agency dated August 15, 2000, finding that it was in
compliance with the terms of the December 18, 1997 settlement agreement
into which the parties entered.
The settlement agreement provided, in pertinent part, that:
2. The Defense Personnel Support Center or its successor (DPSC)
. . . will pay Ms. Trovarelli's attorney's fees of $14,586.60 by remitting
payment to [Ms. Trovarelli's attorney]. Payment will be made within
30 working days afer receipt of final review and concurrence of this
agreement.
3. DPSC will pay Ms. Trovarelli's costs of $381.21. Payment will be
made as per paragraph 2.
4. DPSC will restore 260 hours of sick leave to the personnel record of
Ms. Trovarelli within 30 working days after final review and concurrence
of this agreement.
5.a. DPSC will pay the costs for Ms. Trovarelli to attend 3 semesters
of undergraduate school.
6.a. Ms. Trovarelli will have the right of first refusal, on a one time
basis, for the next GS-13 level position in the Equal Employment Office,
or its successor, at the DPSC, or its successor.
7. Ms. Trovarelli will receive from DPSC the DLA Meritorious Civilian
Service Award. It is anticipated that this award will be issued within
30 working days after final review and concurrence of this agreement.
10. DPSC will ensure that Ms. Trovarelli is not subjected to retaliation
due to the filing of her EEO complaints TA-97-008 and TA-97-032.
By letter to the agency dated June 7, 2000, complainant alleged that
the agency was in breach of the settlement agreement, and requested that
the agency specifically implement its terms. Specifically, complainant
alleged that the agency failed to comply with the letter and spirit of the
agreement and had not acted in good faith by artificially restructuring
the EEO Office of DSCP so that a grade 13 position was eliminated (by
promoting the person in that position to GS-14) and by an ongoing failure
to create the grade 13 position envisioned for the office when a grade 14
position was created. Noting clause 10 concerning reprisal, complainant
also asserted that DCP engaged in an ongoing pattern of irregularities
designed to deprive complainant of a promotion to a grade 13 position and
decrease her visibility as a candidate worthy of promotion, including
limitations on her scope of responsibilities, a performance appraisal
based on elements contrary to her assignments, and the failure to award
her a performance award despite excellent performance.
In its August 15, 2000 decision, the agency concluded it had not breached
the settlement agreement. The agency determined that the settlement
agreement did not obligate the agency to create a GS-13 position in
the EEO Office for purpose of extending complainant the right of first
refusal. The agency further stated that the �restructuring� alluded
to by complainant was the reclassification of the DSCP's GS-13 Manager
position to GS-14, in part due to the expertise of the incumbent, and
that complainant's claim that the GS-13 position had been eliminated
was inaccurate. The agency stated that although the GS-13 position was
replaced with a GS-14 position by virtue of the impact of the person in
the job, the position had at all times been encumbered, had never been
available to be offered to complainant, and that it could return to a
GS-13 position when the Manager position became vacant. With regard to
complainant's remaining claims, the agency determined that, as matters
raising claims of further discrimination in violation of the �no reprisal
clause,� they must be raised as new complaints, and provided complainant
forty-five days from the date of her receipt of the decision to contact a
specified EEO Counselor. On appeal, complainant asserts that the agency
has acted in bad faith by making performance of the agreement impossible
by eliminating the only GS-13 position in the EEO Office.
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 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 complainant has not shown that the
agency violated the settlement agreement. The settlement agreement
states that complainant will have the right of first refusal, on a one
time basis, for the next GS-13 level position in the agency's Equal
Employment Office.
The record indicates that no GS-13 positions have been created or
become available in the Equal Employment Office since the signing of
the agreement. The reclassification of the EEO manager position to GS-14
did not create a GS-13 vacancy available to complainant. If complainant
wanted assurance that a GS-13 level position would be created in the EEO
Office, or that she would be the successor to the EEO Manager position
(at the GS-13 level or otherwise), she should have made that part of
the agreement. Moreover, nothing in the agreement as written precludes
restructuring of the EEO Office or the reclassifying of its positions.
Although complainant asserts lack of good faith in the agency's actions,
the agency's reclassification of the EEO Manager position from GS-13
to GS-14 does not violate the spirit of the agreement or preclude the
possibility of future performance by the agency.
The Commission also finds that complainant is claiming that the agency
violated the �no reprisal� clause of the settlement when it engaged in
an ongoing pattern of irregularities designed to deprive complainant
of a promotion to a grade 13 position and decrease her visibility
as a candidate worthy of promotion. The Commission has held that a
complaint which alleges reprisal or further discrimination in violation
of a settlement agreement's "no reprisal" clause is to be processed as a
separate complaint. Bindal v. Department of Veterans Affairs, EEOC Request
No. 05900225 (August 9, 1990); 29 C.F.R. �1614.504(c). If complainant
wishes to pursue the reprisal claim as a claim of discrimination,
if she has not already done so, she should seek counseling concerning
any incidents that she feels are retaliatory in nature related to her
failure to obtain a promotion.
Accordingly, as complainant has not shown breach of the settlement
agreement, the agency's decision 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
September 4, 2001
__________________
Date