01a53413
07-26-2005
Marion T. Gatewood, Complainant, v. Gale A. Norton, Secretary, Department of the Interior, Agency.
Marion T. Gatewood v. Department of the Interior
01A53413
July 26, 2005
.
Marion T. Gatewood,
Complainant,
v.
Gale A. Norton,
Secretary,
Department of the Interior,
Agency.
Appeal No. 01A53413
Agency No. NV-12-01
DECISION
The complainant filed a timely appeal with this Commission from a final
decision (FAD) dated March 22, 2005, finding that it was in compliance
with the terms of the October 23, 2001 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 agrees to create a position for the Complainant and move
her from GS-503-07, Financial Technician, to a series within the 300
group (series General Administrative, Clerical, and Office Services)
and the grade of GS-05. A position description will be provided to
the Complainant not more than 30 days from placement. The position
description will not include language or any description of duties
that include accounting or time and attendance. The position will be
effective on or before November 18, 2001.
By letter to the agency dated February 17, 2005, the complainant alleged
that the agency was in breach of the settlement agreement, and requested
that the agency implement its terms. Specifically, the complainant
alleged that the agency breached the settlement when on February 9,
2005 she was instructed to do a typing assignment. She contends that
the settlement agreement provided that she would not be assigned any
typing duties. The record reflects that the complainant also objected
to a performance plan with a beginning effective date of January 25,
2005 detailing typing duties. The complainant is an administrative
support clerk, GS-303-5.
The March 22, 2005 FAD concluded that the claim regarding typing duties is
a new issue and not covered by the settlement agreement. It found that
the settlement agreement was not breached, and advised the complainant
that if she believed she was discriminated against to contact an EEO
counselor within 45 calendar days of receipt of the FAD.
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).
On appeal, the complainant makes no comment. She submits a copy of
a position description for the job of administrative support clerk,
GS-303-5. Given that it indicates it is a new position description and
was approved on November 16, 2001, the record suggests it was created
pursuant to the settlement agreement. The described duties include
typing.
As found by the FAD, the settlement agreement did not prohibit the
assignment of typing tasks. Accordingly, the FAD finding that the
settlement agreement was not breached is affirmed.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 26, 2005
__________________
Date