01A12344_r
08-15-2002
Sandra Flanagan, Complainant, v. Gordon R. England, Secretary, Department of the Navy, Agency.
Sandra Flanagan v. Department of the Navy
01A12344
August 15, 2002
.
Sandra Flanagan,
Complainant,
v.
Gordon R. England,
Secretary,
Department of the Navy,
Agency.
Appeal No. 01A12344
Agency No. DON- 00-68891-001
DECISION
Complainant filed a timely appeal with this Commission from a final agency
decision dated February 7, 2001, finding that it was in compliance with
the terms of the August 31, 2000 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 shall conduct a review of all persons within the same job
series as complainant
who have been promoted within three years prior to the date complainant
was promoted
to determine if the agency had a past practice of providing the highest
rate of pay at the
time of promotion. If the review shows that the agency had the practice
of providing the
highest rate of pay, complainant will be given the highest rate of pay.
Highest rate of pay
shall be applied in accordance with statutes and regulations. If the
highest previous rate
of pay is applied, it will be retroactive to the date of complainant's
last promotion.<1>
By letter to the agency dated December 26, 2000, complainant alleged
that the agency breached the aforementioned provision of the settlement
agreement, and requested that the agency reinstate her underlying
complaint. Further, complainant alleged that the agency erroneously
found that it did not have a practice of granting the highest rate
of pay to promoted employees. Specifically, complainant argues that
one other promoted employee was entitled to the highest rate of pay;
that the employee received the highest pay rate; and that this action
constitutes a past practice of providing the highest rate of pay at the
time of promotion.
In its final decision, the agency concluded that it complied with the
terms of the settlement agreement. Specifically, the agency noted that a
review concluded that only one out of seven comparable employees received
the highest previous rate of pay. The agency concluded that this does not
constitute a �past practice� of granting the highest previous rate of pay,
and that complainant is therefore not entitled to that rate of pay.
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).
The Commission is unable to ascertain whether or not the agency has
complied with the above referenced provision of the settlement agreement.
The agency summarily concludes that it does not have a past practice of
granting complainant's co-workers the highest rate of pay. The record,
however, does not contain evidence documenting the information that led
the agency to make this conclusion. Specifically, the record fails to
contain documentation of the comparable employees within the same job
series of complainant who received a promotion within three years prior
to the date complainant received her promotion. Further, there is no
evidentiary documentation of the other employees' dates of promotion;
rates of pay; or bases for their salaries.
Accordingly, the agency's decision finding that it did not breach the
settlement agreement is VACATED, and we hereby REMAND the matter for
further processing in accordance with the ORDER below.
ORDER
The agency is ORDERED to conduct a supplemental investigation, which
shall include the following actions:
1. The agency shall provide a list and other documentation, if
available, of comparable employees within the same job series who
received a promotion within three years prior to the date complainant
received her promotion;
The agency shall provide documentation regarding the dates of the
comparable employee's promotions; the job series of comparable employees;
and the job series of the comparable employees;
The agency shall provide documentation regarding the bases for the rate
of pay of the comparable employees; and
The agency shall provide documentation regarding the basis for
complainant's rate of pay.
Thereafter, the agency shall issue a new final decision, with appeal
rights to the Commission, determining whether the agency complied with the
settlement agreement. If the agency again finds that it complied with the
settlement agreement, it shall identify with specificity the reasoning
and evidence in support of such a determination. The supplemental
investigation and issuance of the final decision must be completed within
thirty (30) calendar days of the date this decision becomes final.
A copy of the agency's new final decision must be submitted to the
Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the complainant. If the agency does not comply with the Commission's
order, the complainant may petition the Commission for enforcement
of the order. 29 C.F.R. � 1614.503(a). The complainant also has the
right to file a civil action to enforce compliance with the Commission's
order prior to or following an administrative petition for enforcement.
See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g).
Alternatively, the complainant has the right to file a civil action on
the underlying complaint in accordance with the paragraph below entitled
"Right to File A Civil Action." 29 C.F.R. �� 1614.407 and 1614.408.
A civil action for enforcement or a civil action on the underlying
complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c)
(1994 & Supp. IV 1999). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 29 C.F.R. � 1614.409.
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 (R0900)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court within ninety (90) calendar days from the date
that you receive this decision. In the alternative, you may file a
civil action after one hundred and eighty (180) calendar days of the date
you filed your complaint with the agency, or filed your appeal with the
Commission. 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. 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
August 15, 2002
__________________
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
_______________________
1The settlement agreement also contains a provision that requires the
agency to change the lock on the bunkroom/bathroom that complainant
uses; that the key will be kept in a location determined by an agency
fire chief; and that the facility will be used primarily by females.
This provision is not at issue in the instant appeal.