Sandra Walters, Complainant,v.Louis Caldera, Secretary, Department of the Army, Agency.

Equal Employment Opportunity CommissionMay 22, 2000
01985532 (E.E.O.C. May. 22, 2000)

01985532

05-22-2000

Sandra Walters, Complainant, v. Louis Caldera, Secretary, Department of the Army, Agency.


Sandra Walters, )

Complainant, )

)

v. ) Appeal No. 01985532

) Agency No. CATS 9509F0150

Louis Caldera, )

Secretary, )

Department of the Army, )

Agency. )

____________________________________)

DECISION

Complainant filed a timely appeal from an agency dated June 3, 1998, which

found the agency was in compliance with the terms of the December 13,

1995 settlement agreement.<1> See 64 Fed. Reg. 37,644, 37,659, 37,660

(1999)(to be codified and hereinafter referred to as EEOC Regulation 29

C.F.R. � 1614.402); 29 C.F.R. � 1614.504(b); and 64 Fed. Reg. 37,644,

37,659 (1999)(to be codified at 29 C.F.R. � 1614.405).

The settlement agreement provided, in pertinent part, that:

The Army agree:

(1) It will rewrite complainant's job description no later than 7

February 1996 to accurately reflect her current duties.

By letter to the agency dated June 8, 1996, complainant alleged that the

agency was in breach of the settlement agreement, and she requested that

the agency specifically implement the agreement's terms. Specifically,

complainant alleged that the agency failed to include four major duties

in the new job description. These duties included: (1) paperwork for

the vendor, (2) bar-coding property, (3) the Laurel River Lake Project,

and (4) the government VISA Credit Card Procurement System.

The agency issued a decision July 24, 1996. In this decision, the

agency found that it was in compliance with the settlement agreement.

The complainant appealed the decision to this Commission. On November

7, 1997, the Commission vacated the agency decision and remanded it

to the agency. Specifically, the Commission ordered the agency to

supplement the record with evidence including affidavits from persons

with knowledge of complainant's duties and percentages of time she

performed these duties.

The agency supplemented the record and allowed the complainant to submit

information regarding her job description. In its June 3, 1998 decision,

the agency concluded that the four duties were included in the general

language of the job description and that the agency was in compliance

with the settlement agreement.

Volume 64 Fed. Reg. 37,644, 37,656 (1999)(to be codified and hereinafter

referred to as 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).

In the instant case, the intent of the settlement agreement was for the

agency to rewrite the job description to accurately reflect complainant's

job duties. The agency acknowledged that complainant performs the four

duties that she wants included; however, the agency found that the general

language of the new job description included these individual duties

and that these duties did not need to be specified. In section 2 of

the job description, the agency describes duty 1 (paperwork for vendor)

as �prepares receiving and delivery reports for payment of goods and

services received.� Also in section 2, the agency identifies duty 2

(bar-coding) as �serves as property accounting clerk, assuring that

acquisitions, transfers, disposal, and all other property transactions

are properly handled, documented, and bar-coded.� The Laurel River Lake

Project (duty 3) is referenced in the major duties section of the job

description as �serves as support for and assists . . . facilities at

multiple purpose lake projects and local flood control projects within

the Eastern Kentucky Area.� Finally, the agency discusses complainant's

role with the VISA Credit Card Procurement System (duty 4) in section 3,

�Makes purchases utilizing the Government Visa Credit Card, and manages

the VISA Credit Card Procurement System for the projects.� Although

complainant disapproves of the general language in the job description,

her supervisor and other agency officials with knowledge of her duties

believe the job description is accurate.

Upon review, the Commission finds that the agency corrected the old

job description so that it accurately reflects complainant's duties.

Therefore, the agency's decision is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0300)

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 64

Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred

to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter

referred to as 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).

COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)

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:

May 22, 2000

____________________________

Date Carlton M. Hadden, Acting Director

Office of Federal Operations

CERTIFICATE OF MAILING

For timeliness purposes, the Commission will presume that this decision

was received within five (5) calendar days of mailing. I certify that

the decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

_______________ __________________________

Date 1On November 9, 1999, revised regulations governing the EEOC's

federal sector complaint process went into effect. These regulations

apply to all federal sector EEO complaints pending at any stage in

the administrative process. Consequently, the Commission will apply

the revised regulations found at 64 Fed. Reg. 37,644 (1999), where

applicable, in deciding the present appeal. The regulations, as amended,

may also be found at the Commission's website at www.eeoc.gov.