01992258
02-15-2000
Isabel S. Padilla, Complainant, v. Daniel R. Glickman, Secretary, Department of Agriculture, Agency.
Isabel S. Padilla, )
Complainant, )
)
v. ) Appeal No. 01992258
) Agency No. 950807
Daniel R. Glickman, )
Secretary, )
Department of Agriculture, )
Agency. )
______________________________)
DECISION
The Commission finds that the agency's December 21, 1998 letter of
determination dismissing Complainant's breach of settlement agreement
claim, is proper pursuant to the provisions of 64 Fed. Reg. 37,644,
37,660 (1999) (to be codified and hereinafter referred to as 29
C.F.R. �1614.504).<1>
The record shows that Complainant reached a settlement agreement with the
agency which provided, inter alia, that she would be granted an immediate
promotion to the position of loan specialist (GS-1165-11) with promotion
potential to loan specialist (GS-1165-12), in the Albuquerque area with
back pay. The agreement also provided that if a specific coworker was
promoted to a loan specialist GS-1165-12 position, Complainant would
also receive a promotion to a loan specialist GS-1165-12 position.
The record shows that effective July 6, 1997, Complainant was promoted
to a loan specialist GS-1165-11 position and on December 5, 1997, she
was promoted to a loan specialist GS-1165-12
position with the duty station in Albuquerque, New Mexico. On December
31, 1997, a coworker at the Santa Fe office retired. Effective March
15, 1998, Complainant was reassigned to the Santa Fe office because �it
was in the best interest of the agency�.
By letter dated April 13, 1998, Complainant claimed that the reassignment
breached the settlement agreement. The record further shows that
Complainant also claimed that the reassignment had been ordered by
the same agency official who had been extremely reluctant to sign the
settlement agreement, in an effort to hurt her. The agency issued
a final determination finding that the reassignment had not breached
the settlement agreement because �there is no language reflected or
implied ... that the duty station of Albuquerque, New Mexico, was to be
a permanent duty station for the complainant�.
The regulation set forth at 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, the
complainant shall notify the EEO Director, in writing, of the alleged
noncompliance within 30 days of the date 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.
Settlement agreements are contracts between the appellant 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
(Aug. 23, 1990); In re Chicago & E.I. Ry. Co., 94 F.2d 296 (7th
Cir. 1938). In reviewing settlement agreements to determine if there is
a breach, the Commission is often required to ascertain the intent of the
parties and will generally rely on the plain meaning rule. Wong v. United
States Postal Service, EEOC Request No. 05931097 (Apr. 29, 1994) (citing
Hyon v. United States Postal Service, EEOC Request No. 05910787 (Dec. 2,
1991)). This rule states that if the writing appears to be plain and
unambiguous on its face, then its meaning must be determined from the
four corners of the instrument without any resort to extrinsic evidence
of any nature. Id. (citing Montgomery Elevator v. Building Engineering
Service, 730 F.2d 377 (5th Cir. 1984)).
The settlement agreement in the instant case provided for Complainant's
promotion to GS-11 and GS-12 loan specialist positions. The agreement
specifically provided that the agency would �grant [complainant] an
immediate promotion to the position of loan specialist (GS-1165-11) with
promotion potential to loan specialist (GS-1165-12) in the Albuquerque
area�. The record reflects that the agency met its obligations when it
promoted Complainant to a loan specialist GS-11 position in July 1997, and
to a loan specialist GS-12 position in December 1997. Three months after
her last promotion, Complainant was reassigned to the Santa Fe office.
The Commission determines that this reassignment was not contrary to the
provisions of the agreement. The Commission notes that the settlement of
an EEO complaint does not insulate an employee from any future actions
which the agency may take in its overall operational needs. See, e.g.,
Pyles v. USPS, EEOC Request No. 05200044 (September 9, 1991). Here,
the record reflects that complainant's reassignment to Sante Fe was
precipitated by the retirement of an agency employee. We determine,
moreover, that the agency did not enter the settlement agreement in bad
faith, as the record reflects that at the time the settlement agreement
went into effect, the retirement of the agency employee was unanticipated.
Accordingly, the agency's final determination is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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). 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).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S1199)
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:
February 15, 2000
DATE
Carlton
M.
Hadden,
Acting
Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_____________ _________________________________
DATE1 On 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.