Jacquelyn A. Woodard, Complainant,v.Condoleezza Rice, Secretary, Department of State, Agency.

Equal Employment Opportunity CommissionJan 9, 2009
0120073678 (E.E.O.C. Jan. 9, 2009)

0120073678

01-09-2009

Jacquelyn A. Woodard, Complainant, v. Condoleezza Rice, Secretary, Department of State, Agency.


Jacquelyn A. Woodard,

Complainant,

v.

Condoleezza Rice,

Secretary,

Department of State,

Agency.

Appeal No. 0120073678

Agency No. DOS-0143-04

DECISION

Complainant filed a timely appeal with this Commission from a final

decision (FAD) by the agency dated July 27, 2007, finding that it was in

compliance with the terms of the May 20041 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 provided, in pertinent part, that: the agency

would:

9.1. Assign Ms. Jacquelyn Woodard permanently to the Office of

Information Assurance, effective immediately.

9.2. Within two (2) pay periods, restore to Ms. Woodard annual leave

in the amount of 118.50 hours.

9.3. Within two (2) pay periods, charge 118.50 hours to Ms. Woodard's

sick leave account.

In an email correspondence dated June 7, 2005, complainant alleged that

the agency breached the settlement agreement. Specifically, complainant

alleged that although IRM submitted a request to the Human Resources

department to develop a new position description for complainant so that

she could move to the Office of Information Assurance, complainant had

not seen the new position description. In subsequent correspondences,

complainant further alleged that the agreement was breached because the

form SF-50 states that she was reassigned to the Office of Information

Assurance effective June 12, 2005, instead of the May 19, 2004 date of

the execution of the settlement agreement. Additionally, complainant

alleged that the agency breached the agreement when it failed to restore

118.5 hours of annual leave to her leave account and charge her with

118.5 hours of sick leave.

In its July 27, 2007 FAD, the agency concluded that it did not breach the

agreement. The agency stated that in August 2004, it submitted a request

to Human Resources to classify a new position description in order to

move complainant to a new position in the Office of Information Assurance.

The agency determined that although the new position description was dated

June 3, 2005, and the form SF-50 notice of personnel action reassigning

complainant was dated June 16, 2005, the agency complied with the terms

of the agreement because it initiated actions to reassign complainant

in August 2004.

The agency further determined that although the agency initially

categorized 118.5 hours of complainant's leave with an "other"

designation, the agency complied with the agreement by correctly charging

the 118.5 hours of leave to complainant's sick leave balance on February

6, 2006.

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 provision 9.1, the agency agreed to permanently assign complainant to

the Office of Information Assurance. The record contains a copy of a form

SF-50, which reflects that complainant was reassigned from the Procurement

Support Division to the Information Assurance Office, effective June

12, 2005. The agency maintains that it complied with the terms of the

agreement because it initiated actions to reassign complainant in August

2004, although the effective date of the reassignment is June 12, 2005.

However, provision 9.1 states that complainant would be reassigned to

the Information Assurance Office effective immediately. The settlement

agreement was executed in May 2004; therefore, complainant should have

been reassigned to the Information Assurance Office effective May 2004.

Thus, we find that the agency breached provision 9.1 of the agreement.2

In provisions 9.2 and 9.3, the agency agreed to restore 118.5 hours of

annual leave to complainant and charge complainant with 118.hours of

sick leave, within two pay periods after the execution of the agreement.

The record reflects and the agency acknowledges that it incorrectly

characterized complainant's 118.5 hours of leave with an "other"

designation in 2006, but ultimately charged the leave as sick leave on

complainant's July 5, 2007 leave and earnings statement. Consequently,

we find that despite the agency's belated compliance, the agency did

not breach the terms of provisions 9.2 and 9.3 of the agreement.

Nonetheless, we find that the agency breached provision 9.1 of the

settlement agreement. To remedy a finding of breach, the Commission

may order reinstatement of the underlying complaint, or enforcement

of the agreement's terms. See 29 C.F.R. 1614.504(c). In this case,

we determine that specific enforcement of the terms of the agreement is

the appropriate remedy.

Accordingly, the Commission hereby REMANDS this matter to the agency

to take remedial actions in accordance with this decision and the ORDER

below.

ORDER

Within sixty (60) days after the date this decision becomes final, the

agency shall assign complainant to the Office of Information Assurance

effective May 24, 2004. The agency shall produce a form SF-50 reflecting

that complainant was assigned to the Office of Information Assurance

effective May 24, 2004.

The agency is further directed to submit a report of compliance, as

provided in the "Implementation of the Commission's Decision. The report

shall include all supporting documentation verifying that the corrective

action has been implemented.

IMPLEMENTATION OF THE COMMISSION'S DECISION (K0408)

Compliance with the Commission's corrective action is mandatory.

The agency shall submit its compliance report within thirty (30)

calendar days of the completion of all ordered corrective action. The

report shall be submitted to the Compliance Officer, Office of Federal

Operations, Equal Employment Opportunity Commission, P.O. Box 19848,

Washington, D.C. 20036. The agency's report must contain supporting

documentation, and the agency must send a copy of all submissions to

the complainant. If the agency does not comply with the Commission's

order, the complainant may petition the Commission for enforcement

of the order. 29 C.F.R. � 1614.503(a). The complainant also has the

right to file a civil action to enforce compliance with the Commission's

order prior to or following an administrative petition for enforcement.

See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g).

Alternatively, the complainant has the right to file a civil action on

the underlying complaint in accordance with the paragraph below entitled

"Right to File A Civil Action." 29 C.F.R. �� 1614.407 and 1614.408.

A civil action for enforcement or a civil action on the underlying

complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c)

(1994 & Supp. IV 1999). If the complainant files a civil action, the

administrative processing of the complaint, including any petition for

enforcement, will be terminated. See 29 C.F.R. � 1614.409.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0408)

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 (R0408)

This is a decision requiring the agency to continue its administrative

processing of your complaint. However, if you wish to file a civil

action, you have the right to file such action in an appropriate United

States District Court within ninety (90) calendar days from the date

that you receive this decision. In the alternative, you may file a

civil action after one hundred and eighty (180) calendar days of the date

you filed your complaint with the agency, or filed your appeal with the

Commission. 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. 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

__January 9, 2009________________

Date

1 We note that the record does not contain a copy of the signed

agreement. However, complainant contends that the agreement was executed

on May 19, 2004, and the agency contends that the agreement was executed

on May 24, 2004.

2 We note that complainant further contends that she has not received

a new position description reflecting her reassignment. However, we

decline to address this issue herein because the terms of the settlement

agreement do not provide that complainant will be provided with a new

position description.

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0120073678

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P. O. Box 19848

Washington, D.C. 20036

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