0120101140
06-18-2010
Virgis T. Brown, Complainant, v. Tom J. Vilsack, Secretary, Department of Agriculture, Agency.
Virgis T. Brown,
Complainant,
v.
Tom J. Vilsack,
Secretary,
Department of Agriculture,
Agency.
Appeal No. 0120101140
Agency Nos. FSA-2007-00487 & FSA-2008-01104/DC-09-00811
DECISION
BACKGROUND
Complainant filed a timely appeal with this Commission from an Agency
Determination, dated January 26, 2010, finding that it was in compliance
with the terms of the May 21, 2009 settlement agreement into which the
parties entered. See 29 C.F.R. �� 1614.402; 1614.405; and 1614.504(b).
The settlement agreement provided, in pertinent part, that:
The Agency agrees to:
1. Pay to the Complainant a lump sum in the amount of twenty-five thousand
dollars ($25,000 . . .
2. Pay reasonable Attorney's Fees not to exceed fifteen thousand dollars
($15,000 . . .
3. . . .
4. Participate with the Complainant in formulating a written Career
Development Plan (CDP) specifically tailored for the Complainant. The
specific details of the CDP will be jointly agreed to by the Complainant,
her permanent supervisor, and representatives of the Agency. The CDP
will include appropriate formal and informal training, self-development
activities and appropriate details or special assignments. The creation
of said CDP will be completed by the end of Fiscal year 2009 for
implementation in Fiscal Year 2010.
Regarding the Complainant's request to be reassigned to an economist
position in one of the following USDA agencies: Natural Resources
and Conservation Service (NRCS); Animal Plant Health Inspective Service
(APHIS); or the Foreign Agriculture Service (FAS), the Agency is willing
to explore the possibility o[f] reassigning the Complainant to an
economist position outside of the Farm Service Agency [(FSA)]. However,
understand that the Agency securing the Complainant a reassignment to an
economist position outside of [FSA] is subject to Federal regulations,
Agency policy and current budgetary constraints and may prove to be a
difficult task.
By letter to the Agency dated November 25, 2009, Complainant alleged
that the Agency was in breach of the settlement agreement, and requested
reinstatement of her underlying complaints. Specifically, Complainant
alleged that the Agency failed to assist her with her career development
and placed her in an EEO Specialist position rather than an Economist
position. Complainant added that the Agency did not allow her to work
in the position for which she was hired in 2003 and, since 2006, shifted
her around the Agency.
In its January 26 response, the Agency concluded that it did not breach
the agreement. Specifically, the Agency stated that, in an October 5,
2009 email, Complainant confirmed that she did not want to return to her
former position and wanted to remain in Civil Rights (OCR). The Agency
added that, effective October 11, 2009, it reassigned Complainant to
its Compliance and Program Analysis Branch and she retained the title of
Economist.1 The instant appeal from Complainant followed, in which she
stated that she did not want to return to her former position because
it was within the department she endured discrimination so she accepted
the OCR position out of necessity .
ANALYSIS AND FINDINGS
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, in May 2009, the Agency agreed to pay Complainant a
lump sum of $25,000 and up to $15,000 in attorney's fees, participate in
formulating a career development plan for her, and explore the possibility
of reassigning her to an Economist position in another Agency. The Agency
noted in the agreement that locating a reassignment position could be
difficult. Ultimately, the Agency offered Complainant the choice of
returning to her original Economist position or accepting an Economist
position in the Agency's OCR. The record contains a Career Development
Plan and a subsequent Individual Development Plan for Complainant.
After a careful review of the record, we are not persuaded that the Agency
breached the May 21 agreement by the actions alleged and set forth above.
Hence, we AFFIRM the Agency's determination. However, we note if we
were to find breach, we could only order reinstatement of the underlying
complaint or enforcement of the specific terms of the agreement. See 29
C.F.R. � 1614.504(c). In this case, Complainant requested the former.
However, Complainant received some of the benefits promised in the
Agreement, i.e., $25,000 and possible attorney's fees; benefits which
would have to be returned if we found breach and she reinstated the
complaint for further processing. We AFFIRM the Agency Determination
of compliance. Complainant's concerns go beyond the May 21 agreement.
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 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 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
June 18, 2010
__________________
Date
1 We note that the record contains a 2010 Individual Development Plan and
a Career Development Plan containing 2009 dates, both for complainant.
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0120101140
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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