0120120713
12-20-2012
Karen L. DerMargosian, Complainant, v. Leon E. Panetta, Secretary, Department of Defense (Defense Commissary Agency), Agency.
Karen L. DerMargosian,
Complainant,
v.
Leon E. Panetta,
Secretary,
Department of Defense
(Defense Commissary Agency),
Agency.
Appeal No. 0120120713
Agency No. DECA-0165-2009
DECISION
Complainant filed a timely appeal with this Commission from a final decision by the Agency dated October 13, 2011, finding that it was in compliance with the terms of an August 3, 2010 settlement agreement. See 29 C.F.R. � 1614.402; 29 C.F.R. � 1614.504(b); and 29 C.F.R. � 1614.405.
BACKGROUND
On August 3, 2010, Complainant and the Agency entered into a settlement agreement to resolve the matter that had been pursued in the EEO complaint process. The settlement agreement provided, in pertinent part, that the Agency agreed to take the following action:
3.e. . . .to place Complainant in a Clerk position, GS-3 step 5, at the Imperial Beach Commissary, with a start date no later than 30 days after the execution of this agreement.1
By letter to the Agency dated September 22, 2011, Complainant, through her former attorney, alleged that the Agency breached provision 3.e. Specifically, Complainant alleged that the Agency confirmed that the clerk position agreed to by the parties during the settlement negotiations, never existed as a clerical position consisting of primarily sedentary duties. The record reflects that Complainant has identified the substance of the breach claim as follows:
Specifically, the Agency has recently confirmed that the "clerk" position agreed to by the parties during settlement negotiations, never existed as a clerical position consisting of primarily sedentary duties.
Complainant demanded that specific performance of the agreement required her placement into a clerk position that does not require strenuous physical activity, and which consists of primarily sedentary activities such as filing reports or performing payroll tasks.
In its October 13, 2011 final decision, the Agency found no breach of provision 3.e. The Agency found that Complainant's breach allegation was untimely raised. The Agency noted the instant agreement specifically provided that Complainant was to notify the Agency of a claim of breach within thirty days of the date she became aware of the alleged breach. The Agency stated that at the time of the negotiations, Complainant was represented by an attorney. The Agency found that Complainant should have known as early as December 2010 when she was performing the essential duties of the clerk position within the bounds of any medical restrictions, that the Agency had breached provision 3.e.
The Agency further stated that during the relevant period, once the unique clerk position description was drafted, classified and graded by a qualified classifier for the Agency, Complainant was provided with a copy of her position description on or about February 22, 2010. The duties Complainant was performing and was expected to perform were described in the position description. The Agency stated that the evidence in the record reveals that Complainant probably knew and agreed that she was expected to perform non-sedentary duties on or before August 3, 2010, and no later than February 22, 2010.2
The Agency further found that assuming, for the sake of argument only, Complainant's breach allegation was timely, it was in compliance. The Agency asserted that Complainant was placed in a clerk position, GS-3 step 5, in December 2010, following the signing of the instant agreement.
Complainant, on appeal, argued that when she finally received her position description on March 4, 2011, she noted "the problems were that it is from occupational series 1101 and not of 0303. When I let the Agency know of this fact, they kept saying these are duties of 0303 and not 1101. I took what the Agency was saying at face value." Complainant further argued that on May 22, 2011, she felt that the Agency "finally cured the breach when I was finally reassigned and they were still trying to work with me on my duties. The Agency denied my request for a reasonable accommodation due to essential functions of my position, about two months later. It became clear that point that they were no longer participating in the interactive process."
Further, Complainant argued that in its instant final decision the Agency attempted to portray the services of her former attorney "has been subpar. Is this portrayal really necessary of the Agency? No, it is not. The Agency has and continues to show such disrespect of the EEO process...The Agency in their October 13, 2011 letter attempts to portray how Appellant is wrong in the fact that the Appellant was not promised a certain set of duties as a promise of goods made in their depiction of assuming of arguendo. The Agency is out right wrong on this assumption. If Appellant were to assume there arguendo on that fact; then why was the word clerk used in the Settlement Agreement?"
ANALYSIS AND FINDINGS
As a threshold matter, we find that Complainant timely filed her breach claim. There is no evidence, other than the Agency's generalized statements, indicating that Complainant's breach claim was untimely raised. Based on these circumstances, we find that Complainant timely filed her breach claim.
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. Dep't of Def., 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. Dep't 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. U.S. Postal Serv., 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).
Provision 3.e. provides for an affirmative Agency obligation to place Complainant in a Clerk position, GS-3, Step 5, at the Imperial Beach Commissary, with a start date no later than 30 days after the signing of the instant agreement. Complainant asserts, however, that she should have been placed in a position with sedentary duties. If Complainant had wanted to be placed in a position with sedentary duties following the execution of the settlement agreement, she should have included such a provision as part of the subject agreement. See Jenkins-Nye v. General Services Administration, EEOC Appeal No. 01851903 (March 4, 1987).
The Agency's finding of no breach of provision 3.e. of the August 3, 2010 settlement agreement was proper and is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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 77960, Washington, DC 20013. 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 (S0610)
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 (Z0610)
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
December 20, 2012
__________________
Date
1 The settlement agreement also provides for the Agency to pay Complainant $20,000 in compensatory damages; pay Complainant's attorney $30,000 in attorney's fees and legal costs; rescind Complainant's termination and place Complainant in a Leave Without Pay status from October 17, 2009 until the date she returns to work; assure that there would be no probationary period be required to be served by Complainant; and grant all sick and annual leave Complainant would have earned between October 17, 2009 and the date she begins employment at the Imperial Beach Commissary. These provisions are not at issue in the instant case.
2 The Commission finds the Agency's argument confusing, as it asserts that even though Complainant was aware of the duties of the subject position on or before August 3, 2010, she should have known of the duties by no later than February 22, 2010, an earlier date than August 3, 2010. Even though repeated Agency reference is made to "February 22, 2010," the Commission posits that the Agency intended to make reference to February 22, 2011, instead.
---------------
------------------------------------------------------------
---------------
------------------------------------------------------------
2
0120120713
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120120713
6
0120120713