01A32453_r
04-12-2004
Mary E. Devine, Complainant, v. Gale Norton, Secretary, Department of Interior, Agency.
Mary E. Devine v. Department of Interior
01A32453
April 12, 2004
.
Mary E. Devine,
Complainant,
v.
Gale Norton,
Secretary,
Department of Interior,
Agency.
Appeal No. 01A32453
DECISION
Complainant filed an appeal with this Commission from a February 10,
2003 agency decision finding no breach of the June 7, 2002 settlement
agreement into which the parties entered.
The settlement agreement provided, in pertinent part, that:
2. [Supervisor A] will use the specific job requirements of
[complainant's] position in development of a training program for
[complainant]. All parties to this agreement will be signatories to
the training plan.
3. Once the training plan has been developed and [complainant] has
begun the program, [Supervisor A] will begin to provide [complainant]
with an evaluation of each Transportation Assistance Group Report [TAG]
and Scope of Work prepared by [complainant], providing feedback indicating
strengths and weaknesses.
4. After a training program has been developed, [complainant] will be
given six (6) months in which to improve her skills including analysis,
accuracy, writing quality, and timeliness of reports. At the end of the
six months, Supervisor A will conduct an overall evaluation of her work
and at that time take the appropriate action necessary if the quality
of work has not improved to [the] level of the accepted standard of the
office as defined in the training plan.
. . . .
6. [Supervisor A], Supervisory Landscape Architect,
Facilities/Transportation, National Park Service, will assume
responsibility for ensuring that the action item identified in [Item]
2 of this agreement takes place within 30 days commencing from the time
the last signature has been affixed to this document.
7. [Supervisor A], Supervisory Landscape Architect,
Facilities/Transportation, National Park Service, will assume
responsibility for ensuring that the action item identified in Items 3 &
4 of this document take place as specifically set out in each item.
In a December 2, 2002 letter to the agency, complainant alleged that the
agency was in breach of the settlement agreement. Complainant alleged
that the agency failed to adhere to the training plan. She stated
that she had to draft most of the training plan with little input
from Supervisor A and Supervisor B and that the plan was not signed by
Supervisors A and B until after she complained to the Equal Opportunity
Manager.
Complainant alleged that Supervisor A and Supervisor B failed to define
explicitly their expectations for her improvement. She indicated that
Supervisor A and Supervisor B changed their criteria and rules each
time that the two Supervisors went through an iteration of her work.
Complainant stated that consequently she had no way of knowing if she
was meeting the criteria of her two Supervisors. Complainant noted
that while Supervisor A and Supervisor B provided written comments,
their written comments were subject to misinterpretation and the two
Supervisors also assumed that their written comments were sufficient.
Complainant alleged further that the grading scale designed by Supervisor
A and Supervisor B was highly subjective. She indicated that each time
she submitted work to Supervisor A in final format, either Supervisor
A or Supervisor B changed the format, content, or style.
Complainant alleged that although the training plan stated that during the
first month, Supervisor A and complainant would meet to review samples
of her work, complainant and Supervisor A did not meet until September
24, 2002. She noted that Supervisor A's verbal evaluation contained no
positive remarks about her work. Complainant stated that Supervisor A
designed an arbitrary evaluation form and graded six of her TAG reports
and Scopes of Work, only one of which received a passing grade. She also
noted that after September 24, 2002, Supervisor A sent a memorandum
to Supervisor B stating that he did not feel that complainant would be
performing at an acceptable performance standard at the end of six months.
Complainant further alleged that the training plan was �truncated,� noting
that Supervisor A eliminated face-to-face review meetings for TAG reports
and Scopes of Work after only two months of meetings. Complainant also
alleged that after the first couple of reports, Supervisor A became
impatient with face-to-face meetings. Complainant noted that on November
18, 2002, Supervisor A electronically mailed complainant substantial
comments on the Keweenaw National Historical Park, a project at which,
complainant stated, she was at a standstill until she received further
direction.
In its decision, the agency stated that it was not in breach of paragraph
2 of the settlement agreement because a training plan was developed in
July 2002, and that the training plan was signed by all the parties.
The agency also stated that it was not in breach of paragraph 3 because
Supervisor A provided complainant with an evaluation of her completed
TAG reports and for her Scopes of Work. The agency stated further that
it was not in breach of paragraph 4 of the agreement, noting that the
training plan commenced effective July 18, 2002, and that in August 2002,
complainant began attending training courses as specified in the training
plan. The agency also noted that complainant's overall evaluation was
not due to occur until January 2003. Regarding complainant's claims
that Supervisor A and Supervisor B eliminated face-to-face review
meetings, failed to define their expectations for her improvement, and
told complainant and others that she would fail her next performance
evaluation, the agency stated that these issues were not addressed in
the settlement agreement.
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).
The Commission finds that the agency did not breach the settlement
agreement as asserted by complainant. Regarding paragraph 2, the
record contains a July 12, 2002 training plan which indicates that it was
prepared by Supervisor A and Supervisor B �with input� from complainant.
The training plan was initialed by complainant on July 18, 2002, and
the record indicates that the training plan became effective on July
18, 2002. We find therefore that the agency developed a training plan.
The Commission notes that there was no description in the settlement
agreement itself regarding what the training plan was to consist of,
other than the requirement in paragraph 2 that Supervisor A use the
specific job requirements of complainant's position. Complainant has
not alleged, and the record does not reflect, that Supervisor A did not
use the specific requirements of complainant's position.
The Commission finds that although the training plan was not designed
within 30 days of the June 7, 2002 settlement agreement, the agency
developed a plan by July 12, 2002, and was therefore, under the
instant circumstances, in substantial compliance with paragraph 6 of
the agreement. Complainant also alleged that the training plan was not
signed by Supervisors A and B until October 2002. Although the record
reveals that Supervisors A and complainant did not sign the training plan
until October 2002, and that Supervisor B did not sign the agreement until
September 2002, the training plan was in implementation from July 2002.
The record reveals that specific training identified in the training plan
was approved by Supervisor A in July 2002, complainant began participating
in training in August 2002, and Supervisor A was evaluating complainant's
TAG and Scope of Work reports in September 2002. We find, therefore,
no breach of paragraph 2.
We find also that the agency did not breach paragraph 3. The training
plan was developed by July 2002, and complainant began training in August
2002. The record also contains written evaluations prepared in September
2002, by Supervisor A on complainant's TAG reports for the Glacier,
Badlands, Zion and Arches National Parks and for complainant's Scopes of
Work for the Badlands and Yellowstone National Parks. These evaluations
reveal that Supervisor A provided comments regarding complainant's
performance and also rated her performance based on two criteria which
rated complainant from a low of poor to a high of excellent on a scale
of 1 to 5, with 3 being a rating of having met fundamental expectations.
The record also indicates that Person A also met with complainant on
September 24, 2002, at complainant's request to review her performance.
The record contains an interim performance review which also memorializes
what occurred at the meeting. The interim review reflects that
Supervisor A conducted a review of complainant's recently completed
work products and discussed her evaluations for TAG and Scopes of Work
reports, her progress in the training plan and her overall progress.
Also discussed was the rationale for the numerical performance rating,
and expectations regarding complainant's work. The record also reflects
that complainant acknowledged in her notice of breach to the agency that
on November 18, 2002, Supervisor A electronically mailed complainant
comments regarding her work on the Keweenaw National Historical Park.
Accordingly, the agency is therefore not in breach of paragraph 2 of the
settlement agreement because after the training plan was developed in
July 2002, and after complainant began the training plan in August 2003,
Person A began to provide feedback to complainant in September 2002.
Complainant has generally alleged breach because of the manner in which
the evaluations were conducted, the criteria used in the evaluations, the
adequacy of the criteria and her inability to determine the acceptability
of her work performance or whether she was demonstrating improvement.
However, the settlement agreement only required that Person A evaluate
complainant's TAG and Scope reports and provide feedback. The form and
manner in which the evaluations were to be conducted or the criteria
to be used were not contained within the four corners of the settlement
agreement. If complainant wanted the terms of the training plan to be
enforceable, its terms should have been incorporated into the settlement
agreement itself.
Regarding paragraph 4, we do not find a breach. The Commission notes
that the interim evaluation which memorialized the September 24, 2002
meeting between complainant and Supervisor A also included the statement
that complainant's efforts did not meet the fundamental expectations of
her grade and position. This interim assessment which occurred about
two months after the training plan was in effect was not precluded by
the settlement agreement. Nothing in the settlement agreement prohibited
the agency from providing more evaluations of complainant's performance
beyond the one required at the end of a six-month period.
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
April 12, 2004
__________________
Date