01A12779_r
07-24-2001
Lillian M. Miller, Complainant, v. Thomas E. White, Secretary, Department of the Army, Agency.
Lillian M. Miller v. Department of the Army
01A12779
July 24, 2001
.
Lillian M. Miller,
Complainant,
v.
Thomas E. White,
Secretary,
Department of the Army,
Agency.
Appeal No. 01A12779
Agency No. BXHMFO9904J0240
DECISION
Complainant filed a timely appeal with this Commission from an agency
decision, issued on February 14, 2001, finding that it was in compliance
with the terms of the October 29, 1999 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:
2. The Agency will:
B. Change, effective on the date this NSA is signed, the Complainant's
current rating chain to the following: Complainant's 1st line rater
will be the Clinical Psychologist, EDIS Stuttgart Clinic. The senior
rater will be the Deputy Commander for Clinical Services, HMEDDAC.
Complainant will be supervised on a day to day basis by the Heidelberg
EDIS Program Coordinator. This rating chain will exist only so long
as Complainant occupies her present position at EDIS, HMEDDAC.
By letter to the agency dated October 12, 2000, complainant alleged that
the agency breached the settlement agreement. Specifically, complainant
stated that she originally refused to sign the settlement agreement
because the Program Coordinator, who was a lower grade than complainant
and cited in her original complaint, was suggested as her new supervisor.
Instead, the executed agreement put complainant under the supervision of
a psychologist in another clinic. Because her supervisor was located in
another town, complainant states she agreed that the Program Coordinator
would provide local administrative supervision. According to complainant,
however, the �real, clinical, TAPES supervision� was to be provided by
the other psychologist. Complainant alleged that �[t]his has proved
unworkable...�, and that the Program Coordinator demeans her and ignores
her requests for help. Complainant believes the ongoing harassment and
hostility has violated the settlement agreement.
In its February 14, 2001 decision, the agency concluded that it was
in compliance with the settlement agreement. Citing a sworn statement
by the Management Employee Relations Specialist, the agency maintained
that the Clinical Psychologist has been performing as complainant's first
line rater, the Deputy Commander has been a senior rater, and the Program
Coordinator has been providing day-to-day supervision, as required by the
agreement. While acknowledging complainant's concern that the Program
Coordinator was cited in the original complaint as a discriminating
individual, the agency noted that the agreement specifically stated that
the Program Coordinator would provide daily supervision. Therefore,
the agency determined that actions by the Program Coordinator, such as
forwarding concerns to the psychologist, were reasonable. Moreover,
the agency indicated that complainant received an �Exceptional� rating
for the period July 1, 1999 though June 30, 2000.
On appeal, complainant requests that her complaint be reinstated and
reiterates her belief that the agreement has been breached. Complainant
indicates that she agreed to having the Program Coordinator as an
administrative supervisor, �meaning time cards and necessary signatures�,
but contends �this was never made clear in the wording....� Moreover,
she asserts that the psychologist has not been providing her with adequate
supervision and he has been told to become a �more active supervisor.�
In response, the agency maintains that it has complied with the terms
of the agreement. According to the agency, complainant's allegations
establish that the day-to-day supervision is being carried out as
required by the settlement. The agency asserts that complainant is
merely dissatisfied with the results of being supervised as described by
the agreement. Finally, the agency argues that complainant's allegation
of breach is untimely. Specifically, complainant stated that on May 22,
2000 her rater told her that he was not her supervisor, yet complainant
did not allege breach until October 2000.
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).
Complainant contends that the agency violated the portion of the
settlement agreement providing for a different supervisor, paragraph 2. B.
The language in the agreement clearly states that �Complainant's 1st
line rater will be the Clinical Psychologist, EDIS Stuttgart Clinic�,
and that �[c]omplainant will be supervised on a day to day basis by
the Heidelberg EDIS Program Coordinator.� The Commission finds that
the agency complied with this provision. As noted above, complainant
admits that daily supervision is conducted by the Program Coordinator
and that her supervisor is the psychologist in Stuttgart. However,
complainant argues that the Program Coordinator was only to provide
necessary signatures and fill out time cards. The specific tasks to be
performed by the Program Coordinator are not delineated in the agreement,
but rather, the more general role of �day to day supervision� is required.
Moreover, with respect to complainant's contention that the psychologist
is not an active supervisor, we do not find that complainant's expectation
is reflected in the terms of the settlement. While complainant contends
that she is dissatisfied with the supervision provided, we do not find
that the agency breached the October 29, 1999 agreement. Accordingly,
the agency's decision was proper and is hereby AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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
July 24, 2001
__________________
Date