01981369
01-12-1999
Sheila D. Plater, Appellant, v. William M. Daley, Secretary, Department of Commerce, Agency.
Sheila D. Plater v. Department of Commerce
01981369
January 12, 1999
Sheila D. Plater, )
Appellant, )
)
)
v. ) Appeal No. 01981369
) Agency No. 95-56-0089
)
William M. Daley, )
Secretary, )
Department of Commerce, )
Agency. )
______________________________)
DECISION
Upon review, the Commission finds that the agency improperly found no
settlement breach, thereby improperly refusing to reinstate appellant's
complaint, pursuant to 29 C.F.R. �1614.504. The record indicates that
in order to resolve appellant's complaint dated November 29, 1995, the
parties entered into a settlement agreement on December 26, 1996, which
provided, in pertinent part, that appellant, a Management Analyst, GS-13,
in the Technical Plans, Policy and Oversight Staff (TPPOS), the Office of
Chief Information Officer, the Patent and Trademark Office (PTO), would
be assigned to an exterior window office in the TPPOS work area pursuant
to an attached floor plan or to any vacant exterior window office in the
TPPOS work area unless there is a GS-13 employee in TPPOS with more time
in grade than appellant in PTO or a GS-14 employee in TPPOS to assign.
The floor plan attached to the settlement agreement has four exterior
window offices highlighted and states that appellant would be placed in
one of those four window offices. The agreement also provided that if
appellant was displaced from a window office within a one-year period,
the parties would meet to find an suitable alternative.
On October 9, 1997, appellant alleged that the agency breached the
settlement agreement when the agency refused to assign her to a window
office in accordance with the settlement agreement. Specifically,
appellant alleged that on October 7, 1997, her Office Director informed
her that she would not be assigned to a window office because she
was at the GS-13 level and no employees below the GS-14 level would be
assigned thereto. On October 29, 1997, the agency issued a final decision
finding no settlement breach. The agency stated that after the settlement
agreement, three of the subject window offices, which were designated for
use by TPPOS at the time of the settlement agreement, were assigned to the
Office Director and two GS-14 employees in TPPOS, and the fourth window
office was slated to be occupied by a GS-15 employee outside of TPPOS.
The agency indicated that the agreement did not guarantee appellant's
assignment to a window office, and no TPPOS employee at the GS-13 level
or lower was assigned to a window office.
On appeal, appellant reiterates the breach arguments previously raised
and also states that the office purportedly slated for the GS-15 employee
outside of TPPOS remains vacant.
The Commission has held that settlement agreements are contracts between
the appellant and the agency and it is the intent of the parties as
expressed in the contract, and not some unexpressed intention, that
controls the contract's construction. Eggleston v. Department of Veterans
Affairs, EEOC Request No. 05900795 (August 23, 1990). In addition, the
Commission generally follows the rule that if a 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 v. Building Engineering Services,
730 F.2d 377 (5th Cir. 1984). The Commission has followed this rule
when interpreting settlement agreements. The Commission's policy in
this regard is based on the premise that the face of the agreement best
reflects the understanding of the parties.
The settlement agreement clearly provides that appellant would be assigned
to one of the four window offices, which were designated to be occupied
by TPPOS employees at the time of the settlement agreement. The agency
did not assign appellant to a TPPOS window office under the terms of
the settlement agreement, instead it assigned three GS-14 or higher
grade level employees in TPPOS to three TPPOS window offices and slated
the last TPPOS window office to be occupied by a GS-15 employee from
another office. The agency maintained that appellant was not assigned
to a window office since she was not at the GS-14 level; however, the
settlement agreement did not provide that appellant's assignment to one of
the four window offices was contingent upon her being at the GS-14 level.
The placement of a higher graded employee outside of the TPPOS office
was not a consideration in the placement of appellant. Indeed, appellant
states, unrebutted by the agency, that the office slated for the outside
GS-15 employee continues to remain vacant. We find that appellant should
have been placed into this fourth office designated in the floor plan
which was attached to the subject agreement. The agreement provided for
the contingency of appellant's displacement within a one-year period,
i.e., if a higher graded employee arrived, appellant could conceivably
be relocated. Consequently, we find that, at a minimum, appellant
should have been assigned the window office purportedly slated for the
GS-15 employee until that employee's arrival. Accordingly, the agency's
decision finding no breach of the settlement agreement is REVERSED and
the case is REMANDED to the agency for implementation of the agreement.
ORDER
The agency is ORDERED to specifically enforce the December 26, 1996
agreement. The agency shall within thirty (30) calendar days of the
date this decision becomes final place appellant in a window office.
If there are no window offices available, the agency shall document this
fact showing the offices, the occupants, as well as the occupants' grade
levels, and so notify appellant within thirty (30) calendar days of the
date this decision becomes final. The agency shall provide documentation
of the specific enforcement of the subject agreement and/or the notice
to appellant that no offices are presently available to the Compliance
Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0595)
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 appellant. If the agency does not comply with the Commission's
order, the appellant may petition the Commission for enforcement of
the order. 29 C.F.R. �1614.503(a). The appellant 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. ��1614.408, 1614.409, and 1614.503(g). Alternatively,
the appellant 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. ��1614.408 and 1614.409. 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) (Supp. V 1993). If the
appellant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. �1614.410.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (R0993)
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. It is the position of the Commission that 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. You should be aware, however, that courts in some
jurisdictions have interpreted the Civil Rights Act of 1991 in a manner
suggesting that a civil action must be filed WITHIN THIRTY (30) CALENDAR
DAYS from the date that you receive this decision. To ensure that your
civil action is considered timely, you are advised to file it WITHIN
THIRTY (30) CALENDAR DAYS from the date that you receive this decision
or to consult an attorney concerning the applicable time period in the
jurisdiction in which your action would be filed. 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 (Z1092)
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:
Jan. 12, 1999
DATE Ronnie Blumenthal, Director
Office of Federal Operations