01985174
12-27-1999
Veronica A. Surman, Complainant, v. William S. Cohen, Secretary, Department of Defense, (Defense Logistics Agency), Agency.
Veronica A. Surman v. Department of Defense
01985174
December 27, 1999
Veronica A. Surman, )
Complainant, )
)
v. )
) Appeal No. 01985174
William S. Cohen, )
Secretary, )
Department of Defense, )
(Defense Logistics Agency), )
Agency. )
______________________________)
DECISION
INTRODUCTION
Complainant filed a timely appeal with this Commission for a determination
regarding whether the settlement agreement which resolved her EEO
complaint was violated by the agency.<1> Accordingly, we find that the
appeal is timely (see 29 C.F.R. � 1614.401(d) and 64 Fed. Reg. 37,644,
37,660 (1999) (to be codified and hereinafter referred to as 29 C.F.R. �
1614. 504(a) and (b))), and is accepted in accordance with EEOC Order
No. 960.001, as amended.
ISSUE PRESENTED
The issue on appeal is whether the agency violated the terms of its May 2,
1997 settlement agreement with complainant.
BACKGROUND
The agency and complainant entered into a settlement agreement
(settlement) that provided, in pertinent part, that complainant would
withdraw her formal complaint, dated September 29, 1994, under OIC Docket
Number SAN97NA0352E, (Activity Docket Number 94-48963-001). In exchange,
the agency, among other things, agreed that:
2(a) the complainant will be assigned to a position classified as a
Computer Operator<2>, GS-332-05, in the Electronic Printing Section
effective on the first pay period beginning on or after 1 June 1997 for
a period of not less than one year of continuous assignment.
2(b) the agency will, in accordance with the agreement reached with the
complainant dated 29 June 1995, give the complainant credit for performing
the GS-332-05 duties from that date until her assignment under paragraph
"2a" above.
2(c) eighty hours of sick leave will be restored to the complainant by 1
July 1997. Any delay occasioned by offices outside the Agency will not be
construed as a breach of this agreement if the agency takes appropriate
action to effect the action.
2(d) there will be no reprisal against the complainant as a result of
this complaint.
5. This agreement constitutes the complete understanding between the
complainant and the Agency. No other promises or agreements will be
binding unless signed by both parties.
By letter dated June 5, 1998, complainant notified the agency that she
considered it to have violated the terms of the settlement. Specifically,
she indicated that:
1) the agency violated paragraph 2(a) of the settlement because,
effective April 26, 1998, she was reassigned from the Computer Operator
position to an Electronic Duplicating Systems Operator position;
2) she never received an SF-50 reassigning her from her original Computer
Assistant position to the Computer Operator position;
3) the agency violated paragraph 2(b) because she never received
documentation indicating that she had performed Computer Operator duties
from June 29, 1995 until the date she was reassigned, pursuant to the
settlement;
4) after June 1, 1998, she should have been reassigned from the Computer
Operator position back to her "permanent official" position of Computer
Assistant, and then, only "if it were warranted," should she have been
transferred to the Electronic Duplicating System Operator position.
On June 19, 1998, the agency responded to complainant's allegations
of non-compliance. According to the agency, it, in order to ensure
full compliance with the settlement, would change the effective date of
complainant's reassignment from April 26, 1998 to June 7, 1998. The agency
maintained that this change would ensure that complainant's reassignment
was for a period "not less than a year."
With regard to complainant's second contention, the agency indicated that,
on June 18, 1998, an official contacted complainant and confirmed her
receipt of the SF-50. With regard to complainant's third contention, the
agency indicated that an SF-50 was initially issued on August 12, 1997;
however, due to an error, a corrected version was issued on December 22,
1997. According to the agency, both copies, showing an effective date
of "June 29, 1995," were provided to complainant. The agency indicated
that both SF-50s reflect that complainant performed Computer Operator
duties since June 29, 1995. Finally, the agency indicated that nothing
in the settlement provided that, after June 1, 1998, complainant would
be returned to her Computer Assistant position.
ANALYSIS AND FINDINGS
Settlement agreements are contracts between the complainant and the agency
to which ordinary rules of contract construction apply. 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 any resort to extrinsic
evidence of any nature. See Montgomery Elevator v. Building Engineering
Services, 730 F.2d 377 (5th Cir. 1984).
After a careful review of the record, we find that the agency violated
paragraph 2(a) of the settlement. Although the agency changed the
effective date of complainant's reassignment from April 26, 1998 to
June 7, 1998, the settlement provided that she would perform actual
Computer Operator duties for "not less than a year." Therefore, she
was promised she would perform Computer Operator duties for at least
a year. The record indicates, however, that she did not receive that
year of experience. Accordingly, the Commission will order the agency
to fully implement paragraph 2(a) of the settlement.
With respect to complainant's second and third contentions, the
record indicates that the agency has complied with the terms of the
agreement. Finally, with regard to complainant's fourth contention, we
note that the settlement did not impose an obligation upon the agency to
transfer complainant back to her original Computer Assistant position
after June 1, 1998. If complainant thought that this would occur, she
should have insured that such language was included in the settlement.
CONCLUSION
The Commission has concluded that the agency did not fully comply with
the above-referenced portion of paragraph 2(a) of the settlement. The
agency, however, did comply with the other provisions of the settlement
agreement. Accordingly, the agency's finding that the settlement was not
breached is REVERSED and we REMAND the relevant portion of paragraph
2(a) of the agreement for specific implementation in accordance with
the Order below.
ORDER
Within sixty (60) days of the date this decision becomes final, the
agency is ORDERED to reassign complainant to a Computer Operator position,
GS-332-05, in the Electronic Printing Section for a period of time that,
when added to the time complainant previously spent in the position,
will equal one (1) year. A copy of the agency's action reassigning the
complainant must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K1199)
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 64
Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter
referred to as 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)(Supp. V 1993). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 64 Fed. Reg. 37,644, 37,659 (1999)
(to be codified and hereinafter referred to as 29 C.F.R. � 1614.409).
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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). 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).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (T1199)
This decision affirms the agency's final decision/action in part, but it
also requires the agency to continue its administrative processing of a
portion of your complaint. 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 on both that portion
of your complaint which the Commission has affirmed AND that portion
of the complaint which has been remanded for continued administrative
processing. 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 your appeal with the Commission, until
such time as the agency issues its final decision on your complaint.
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:
Dec. 27, 1999
______________ __________________________________
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:
_________________________
__________________________
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.
2Complainant, at the time of the settlement, was a Computer Assistant.