01a50186
02-23-2005
Martha Yedra, Complainant, v. Seth Cropsey, Chairman, United States Information Agency, (International Broadcasting Bureau), Agency.
Martha Yedra v. United States Information Agency
01A50186
February 23, 2005
.
Martha Yedra,
Complainant,
v.
Seth Cropsey,
Chairman,
United States Information Agency,
(International Broadcasting Bureau),
Agency.
Appeal No. 01A50186 Agency No. OCR-02-11
DECISION
The record reveals that on August 8, 2002, complainant and the agency
entered into a settlement agreement regarding complainant's EEO complaint.
The settlement provided in pertinent part as follows:
The Agency agrees that Complainant will remain in her current position
as Director of Programs (Radio Marti), GS 14, and that Complainant will
receive pay, employment benefits, and work assignments consistent with
the duties and grade of this position.
By letter dated November 24, 2003, complainant informed the agency that
it had breached the settlement agreement. According to complainant, she
was removed from work assignments and duties which are consistent with
and necessary for her to perform the responsibilities of the Director
of Programs position. Complainant stated that on November 14, 2003,
the Radio Marti Director announced the dismantling of the Programs
department for which she was responsible. Complainant stated that the
production and announcers units, which comprise the bulk of her work in
the Programs department, were taken away.
By decision dated September 16, 2004, the agency determined that it had
not breached the settlement agreement. The agency stated that on March
17, 2004, complainant was reassigned and transferred from her position
as Director of Programs for Radio Marti to Senior Advisor to the Director
of Television Marti. The agency noted that the Director, Office of Cuba
Broadcasting, stated that complainant's duties were changed and she was
reassigned to another position as part of an overall reformatting of
Radio Marti into an all news and news information service pursuant to a
directive from the Broadcasting Board of Governors. According to the
Director, he determined that the Director of Programs for Radio Marti
should foremost have journalistic qualifications because he believed
that the job required a journalist's perspective toward development of
news and information programs. The Director stated that complainant's
qualifications were primarily managerial and lacked the journalistic
qualifications he considered essential to the Director of Programs
position. The Director stated that complainant's former position was not
abolished, but that the duties of the incumbent differ substantially from
those performed by complainant. The agency noted that the settlement
agreement did not specify that complainant's position would be immune
from any and all business decisions that the agency may feel a need to
implement. The agency further noted that the language of the agreement
did not stipulate a length of time for which complainant would be immune
from future reorganizations or reformatting of the Radio Marti program
structure. According to the agency, complainant did not suffer any loss
of pay or employment benefits, and her reassignment was consistent with
her skills and grade level.
On appeal, complainant contends that the settlement agreement, requires,
in any restructuring or reorganization, that the agency place her in
a position most comparable to the position she held at the time of the
settlement. Complainant claims that the failure to assign her to the
revised Director of Programs position at Radio Marti and her reassignment
to the position of Senior Advisor to the Director of Television Marti
violated the settlement agreement. Complainant argues that the position
descriptions for the prior Director of Radio Programs position and
the revised position contain basically the same duties, including
oversight of the production of programs, managing a staff, advising
the Director on programming plans and requirements, and monitoring the
policy and production standards to achieve high quality broadcasting.
Complainant maintains that as the Director of Programs Department, she
was in charge of and responsible for all programming news and non-news
programs. Complainant states that as Acting Director of Radio Marti, she
was also responsible for similar programming including news programming.
Complainant contends that the agency's position that she does not have a
journalistic background is not substantiated. Complainant argues that
she has extensive knowledge and experience that evidence her direct
involvement in decision-making involving highly sensitive news-related
issues throughout her career.
The Commission has consistently held that settlement agreements are
contracts between the complainant and the agency, and 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, 381 (5th Cir. 1984).
Upon review of the settlement agreement, we observe that the agreement
provided that complainant would remain in her position as Director of
Programs for Radio Marti and that she would receive pay, employment
benefits, and work assignments consistent with the duties and grade of
the position. However, the settlement agreement was executed over a year
before the restructuring of Radio Marti into an all-news and information
service. This change in circumstances was apparently not foreseen when
the agreement was executed. The settlement agreement includes no specific
terms as to its duration. The Commission finds that complainant received
the benefits of the settlement agreement for a reasonable amount of time
and that the agency can not be prevented by the settlement agreement
from making personnel decisions when a restructuring is implemented.<1>
The agency was not obligated under the settlement agreement to place
complainant, after the restructuring, in a position most comparable to
the position she held at the time of the settlement.
In consideration of all of the evidence presented in the record,
the agency's decision finding no breach of the settlement agreement
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
February 23, 2005
__________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
__________________
Date
______________________________
1We note that the settlement agreement also provided that complainant
would receive additional consideration consisting (in part) of $10,000
in compensatory damages and $5,000 in attorneys fees. Complainant has
not claimed that the agency breached these other provisions of the
settlement agreement.