Shari M. Jochem, Complainant,v.Ken L. Salazar, Secretary, Department of the Interior, Agency.

Equal Employment Opportunity CommissionMar 30, 2009
0120070273 (E.E.O.C. Mar. 30, 2009)

0120070273

03-30-2009

Shari M. Jochem, Complainant, v. Ken L. Salazar, Secretary, Department of the Interior, Agency.


Shari M. Jochem,

Complainant,

v.

Ken L. Salazar,

Secretary,

Department of the Interior,

Agency.

Appeal No. 0120070273

Agency No. OS-04-009

DECISION

Complainant filed an appeal with this Commission from a final decision

by the agency dated September 8, 2006, regarding the agency's compliance

with the terms of the September 13, 2005 settlement agreement into which

the parties entered.

The settlement agreement provided, in pertinent part, that:

5. If, upon the [a]gency's issuance of vacancy announcement of a

GS-7 and a GS-9 Paralegal position in the Albuquerque Regional Office,

[c]omplainant applies for the Paralegal positions and [c]omplainant

is found well-qualified for either position, the [a]gency will give

[c]omplainant priority consideration for the position at each grade for

which she is certified eligible.

. . . .

9. Upon [c]omplainant's return to work on October 12, 2005,

the [a]gency will place [c]omplainant in a part-time position, in the

Southwest Regional Office, Albuquerque, New Mexico, working twenty-five

(25) hours per week. Upon [c]omplainant's return to work, her duty hours

will be 7:30 a.m. through 12:30 p.m. Complainant will work for the

[a]gency twenty-five (25) hours per week, unless otherwise approved,

in writing and in advance, by [c]omplainant's supervisor(s).

. . . .

12. The [a]gency will re-write the narrative attachment to

[c]omplainant's performance evaluation for the period May 1, 2004 -

April 30, 2005[,] to exclude the following language: . . .

We note that the settlement agreement also provided that complainant would

receive specified monetary payments and leave. The only provisions at

issue, however, are provisions 5, 9, and 12.

Complainant alleged that the agency was in breach of the settlement

agreement and requested that the agency specifically implement its

terms. Specifically, complainant alleged that the agency failed

to comply with sections 5, 9, and 12 of the settlement agreement.

Complainant stated that before she returned to work as described in

provision 9, the agency announced an opening for a Paralegal position,

contemplated by provision 5. Complainant applied for the position and

was selected for the position. Thereafter, complainant returned to work

in the Paralegal position and requested a part-time schedule, consistent

with provision 9. Complainant's request for a part-time schedule was

granted, but a few weeks later, the Acting Regional Solicitor, according

to complainant, began to pressure complainant to resume a full-time work

schedule. Moreover, complainant was being denied sick and annual leave

accrual because the agency considered the difference in hours between

complainant's part-time hours and a full-time schedule to be leave

without pay (LWOP). Additionally, complainant alleged that the agency

failed to comply with provision 12, wherein the agency agreed to delete

certain narrative paragraphs of complainant's performance evaluation.

In its September 8, 2006 final decision, the agency concluded that

no breach of provisions 5 and 9 occurred as alleged by complainant.

Specifically, the agency found that the settlement agreement did not

provide that complainant would enjoy a part-time work schedule if

she applied and was selected for a Paralegal position as described in

provision 5. The agency found that complainant voluntarily accepted the

full-time Paralegal position. The agency did not agree with complainant

that she should not be required to relinquish the part-time work schedule

envisioned in provision 9, upon her selection for the advertised Paralegal

position contemplated by provision 5. Nevertheless, the agency noted

that complainant was selected for the Paralegal position and also granted

a part-time schedule at her request. The agency found no breach occurred

when the Acting Regional Solicitor made repeated requests that complainant

return to a full-time work schedule.

The agency's final decision found that the agency had not complied

with provision 12 of the settlement agreement. The agency found that

complainant's performance evaluation for the period of May 1, 2004 to

April 30, 2005, did not appear in the agency's personnel records and the

agency failed to maintain that record. The agency's decision directed

the Office of the Secretary to provide the required performance evaluation

to complainant.

On appeal, complainant argues that she has no confirmation that the

agency has complied with provision 12 to date. Complainant states

that the acting Regional Solicitor has ceased pressuring complainant

to resume a full-time work schedule and that her schedule has been

corrected from showing LWOP, to reflect that she is a part-time employee.

Complainant requests that the acting Regional Solicitor be directed

to discontinue making remarks about complainant's EEO settlement and

her part-time schedule. Complainant also requests attorney's fees in

connection with her efforts to secure the agency's compliance with the

settlement agreement.

On appeal, the agency requests that complainant's appeal be denied

because the agency did not breach the settlement agreement. With respect

to provisions 5 (Paralegal position and priority consideration) and 9

(part-time work schedule), the agency states that complainant voluntarily

applied for the Paralegal position and that complainant accepted the

position advertised. The agency argues that it did not breach the

settlement agreement by classifying the advertised full-time position as

it did. Additionally, accompanying the agency's brief on appeal is a copy

of complainant's performance evaluation for May 1, 2004 through April 30,

2005, which the agency notes, does not include any narrative attachment,

and does not include the language the parties agreed would be deleted

(as described in provision 12).

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).

In the instant case, we find that no breach of the settlement agreement

has occurred. We concur with the agency that complainant's selection

for and acceptance of a promotional opportunity (in this case, one

contemplated by provision 5 of the settlement agreement) requires that

complainant accept the terms of that position, notwithstanding the

terms (in this case, a negotiated part-time schedule) of complainant's

prior position. We find that no breach of provisions 5 or 9 occurred

as alleged.

The performance evaluation submitted by the agency on appeal does not

include the narrative language shown in provision 12 of the settlement

agreement. The Commission recognizes that in the agency decision, the

agency found that it had not complied with provision 12. The agency

made that finding because there was never a performance evaluation for

the dates in question in the Human Resources Office and because there

were no computer records of any such evaluation. The agency's finding

of breach was really a records-keeping violation (the agency states in

the decision, "The Agency is required to maintain employee records.").

The agency has since that time issued the performance evaluation and it

properly does not contain any of the language that was supposed to be

"excluded." Even if the language which was to be excluded was originally

in the performance evaluation, as the settlement agreement assumes, there

is no evidence showing that the agency failed to remove the language in

the evaluation and it is clearly not in the evaluation now. Therefore,

we find that the agency has not breached provision 12 of the agreement.

The agency's finding of no breach is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M1208)

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 tends 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 77960,

Washington, DC 20013. 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 (S0408)

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 (Z1008)

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 from the Court that

the Court appoint an attorney to represent you and that the Court also

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 with

the Court 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

March 30, 2009

__________________

Date

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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

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