01993563
05-06-2000
Ingeborg Criss, Complainant, v. Louis Caldera, Secretary, Department of the Army, Agency.
Ingeborg Criss, )
Complainant, )
)
v. ) Appeal No. 01993563
) Agency No. 094050031
Louis Caldera, )
Secretary, )
Department of the Army, )
Agency. )
____________________________________)
DECISION
Complainant filed a timely appeal with this Commission from a final
decision (FAD) by the agency dated February 22, 1999, finding that
it was in compliance with the terms of the March 28, 1995 settlement
agreement into which the parties entered.<1> See 64 Fed. Reg. 37,644,
37,659, 37,660 (1999)(to be codified and hereinafter referred to
as EEOC Regulation 29 C.F.R. � 1614.402); 29 C.F.R. � 1614.504(b);
and 64 Fed. Reg. 37,644, 37,659 (1999)(to be codified at 29 C.F.R. �
1614.405).
In March 1995, the parties executed a settlement agreement which provided,
in pertinent part, that:
(3b) The Army agrees to review the complainant's job description (Military
Personnel Clerk, GS-05) to restructure it as a Military Personnel
Clerk, GS-06, position. The review will be completed not later than
30 days from the date of this settlement agreement. The complainant
will be noncompetitively promoted to the GS-06 position not later than
the beginning of the first pay period following the end of the 30 day
review period.
By letter to the agency dated November 3, 1998, complainant alleged that
the agency breached of the settlement agreement, and requested that the
agency implement its terms. Specifically, complainant alleged that the
agency failed to keep her in the GS-6 position.
In its February 22, 1999 FAD, the agency concluded that the
agency, in good faith complied with the terms of the agreement.
The record reveals that pursuant to the agreement, the agency reviewed
complainant's Personnel Clerk position but determined that it did not
warrant reclassification to the GS-06 grade level. Notwithstanding
this determination, the agency promoted the complainant to a GS-06
position without changing her duties. Approximately three years after
complainant's promotion, the agency conducted an activity-wide position
audit, wherein it determined that complainant was not performing duties
consistent with her grade level. By letter dated October 26, 1998, the
agency informed complainant that her position was reclassified to GS-05.
The agency contends that complainant rejected duties that matched her
grade level.<2> On appeal, the complainant argues that the agency never
offered her duties matching her GS-06 rank. The agency maintains that
complainant's duties did not meet the responsibility and complexity
levels of a GS-06.
Volume 64 Fed. Reg. 37,644, 37,660 (1999) (to be codified and hereinafter
cited as 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. If
the complainant believes that the agency has failed to comply with the
terms of a settlement agreement or final action, the complainant shall
notify the EEO Director, in writing, of the alleged noncompliance within
30 days of when the complainant knew or should have known of the alleged
noncompliance. The complainant may request that the terms of the agreement
be specifically implemented, or alternatively, that the complaint be
reinstated for further processing from the point processing ceased.
EEOC Regulation 29 C.F.R. �1614.504(b) provides that 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 action. The complainant may file such an appeal 35 days after
he or she has served the agency with the allegations of noncompliance,
but must file an appeal within 30 days of his or her receipt of an
agency's determination.
The Commission has consistently 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, 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, 381 (5th Cir. 1984).
In the instant case, we find that the agency has complied with its
obligations under the settlement agreement. There is no dispute that the
agency noncompetitively promoted the complainant to GS-06. There is also
no dispute that the agency reviewed the complainant's job description for
restructuring. These were the agency's obligations under the settlement
agreement. We find no breach of the settlement agreement. The settlement
agreement does not preclude complainant from retaining the personal rank,
GS-06, while performing the duties of a position classified as GS-05.
Based on our review of the record in the present case, the arguments
on appeal, including those arguments not expressly addressed herein,
the Commission finds, in the present case, that complainant has failed
to sustain his burden of showing that the agency was not in compliance
with the March 28, 1995 settlement agreement.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)
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:
May 6, 2000 ____________________________
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 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.
2 Under the reclassification, complainant is entitled to a qualified
grade retention for a period of two years. Upon the expiration of
the two year grade retention period, complainant could qualify for an
extension of grade retention in accordance with Section 5363 of Title 5,
United States Code.