01A14310_r
12-04-2002
Wanda N. Savage, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.
Wanda N. Savage v. Department of Veterans Affairs
01A14310
December 4, 2002
.
Wanda N. Savage,
Complainant,
v.
Anthony J. Principi,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A14310
Agency No. 200P-2651
DECISION
Complainant worked as a GS-12 employee in the Construction and Valuation
Division of the agency's Los Angeles Regional Office when the agency
proposed a reorganization of the division that would require complainant
to perform several additional duties. Complainant, believing that she
was being �set-up to fail� these additional duties, left the agency for
an outside position. She then sought EEO Counseling, claiming that the
agency's reorganization plan discriminated against her on the bases
of race (African-American), sex (female), and in reprisal for prior
EEO activity. In a December 11, 2000 formal complaint, complainant
alleged that the reorganization was discriminatory, and combined with
management's refusal to discuss the issue, resulted in a constructive
discharge. She also claimed that the reorganization violated an April
29, 1996 settlement agreement.
By notice dated February 28, 2001, the agency accepted the complaint
for investigation, noting that the matter was a �mixed-case� due
to complainant's constructive discharge claim. In a letter between
agency officials, also dated February 28, 2001, an EEO official noted
that complainant's claim of breach only related to the reorganization,
and should be processed separate from the mixed-case discrimination claim.
After 120 days without a final decision from the agency, complainant filed
an appeal with the Merit Systems Protection Board (MSPB). The agency
forwarded both the breach and constructive discharge claims to the
MSPB for adjudication, docketed as MSPB Docket No. SF-0752-01-0336-I-2.
On October 26, 2001, the MSPB dismissed the appeal for lack of appellate
jurisdiction. In its dismissal, the MSPB noted that complainant
requested to withdraw her constructive discharge claim from the MSPB
hearing process. As a result, the MSPB found that complainant's claims
were no longer �mixed,� and �[complainant] has the right to return to
the agency EEO process and should do so immediately so as to meet any
applicable time limits.� Complainant then filed the present appeal to
this Commission.
The Commission does not have appellate jurisdiction over the MSPB's
decision with regard to its own jurisdiction. Therefore, to the extent
that complainant is appealing from the MSPB's �lack of jurisdiction�
finding, her appeal is dismissed.<1> Nonetheless, the Commission will
address complainant's settlement breach claim.
The agency never issued a decision on complainant's claim of settlement
breach. The breach claim is a separate matter that should not have been
considered part of the mixed-case complaint. Since the agency failed to
issue a decision within thirty-five (35) days of complainant's breach
claim, complainant's appeal directly to this Commission is proper with
regard to breach. 29 C.F.R. � 1614.504(b).
In the April 29, 1996 settlement agreement, the agency agreed, in
pertinent part, to:
Reassign the complainant to a GS-12 position in the Loan Guaranty
Division at the end of the two year [detail] period, if her performance
is acceptable;
In the event of a national restructuring effort which results in
unavailability of a GS-12 position in the Loan Guaranty Division,
reassign the complainant to another permanent GS-12 position within the
Los Angeles Regional Office.
In her claim of breach, complainant argues that she was hired as a
Special Adaptive Housing (SAH) agent under the settlement agreement.
Complainant contends that her new duties entailed staff appraiser work,
which is outside of her SAH position description, and in violation of
the settlement agreement. She notes that prior SAH agents have not been
required to perform staff appraiser functions.
Any settlement agreement knowingly and voluntarily agreed to by the
parties, reached at any stage of the complaint process, is binding on both
parties. See 29 C.F.R. � 1614.504(a). 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 parties' intent as
expressed in the contract, not some unexpressed intention, 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 generally has 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, the agency never refused to place complainant
in a GS-12 Loan Guaranty Division position. The settlement agreement
required nothing more. If complainant sought to have specific duties
or job titles as a result of the settlement agreement, she should have
negotiated to have them explicitly written into the settlement agreement.
The agency performed its obligations under the written terms of the
settlement agreement � it provided complainant with a GS-12 position in
the Loan Guaranty Division. Therefore, the Commission finds no breach
of the settlement agreement.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 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 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 (S0900)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
December 4, 2002
__________________
Date
1The Commission notes that complainant's
election of forums is irrevocable. Complainant chose to file a mixed
case complaint, but then asked for withdrawal in an apparent attempt to
�forum shop� and raise the same issues in the EEO process. The agency has
no duty to process complainant's constructive discharge claim any further.