01973711
03-16-1999
Wilda L. Grant, Appellant, v. Daniel R. Glickman, Secretary, Department of Agriculture, Agency.
Wilda L. Grant v. Department of Agriculture
01973711
March 16, 1999
Wilda L. Grant, )
Appellant, )
)
v. ) Appeal No. 01973711
) Agency No. 941115
Daniel R. Glickman, )
Secretary, )
Department of Agriculture, )
Agency. )
______________________________)
DECISION
INTRODUCTION
Appellant timely appealed the agency's final decision not to reinstate
her complaint of unlawful employment discrimination that the parties
had settled. See 29 C.F.R. ��1614.504, .402(a); EEOC Order No. 960,
as amended.
ISSUE PRESENTED
The issue on appeal is whether the agency breached a settlement
agreement.
BACKGROUND
The record indicates that on January 19, 1995, appellant and the
agency entered into a settlement agreement resolving appellant's formal
complaint filed on November 15, 1994. The settlement agreement provided,
in pertinent part, that: 1) the agency would retroactively promote
appellant to a GS-13, Writer-Editor position effective pay period #12,
1994 (June 12-June 25, 1994); 2) the agency would develop and implement
an Individual Development Plan; and 3) the parties would jointly review
reassignment opportunities for a period not to exceed 6 months from the
date of this agreement.
On July 29, 1995, appellant alleged that the agency breached item 3 of
the settlement agreement when she had not yet heard about her career
opportunities.
On March 11, 1997, the agency issued a final decision finding no
settlement breach. The agency stated that after the receipt of
appellant's noncompliance allegation, in July and August 1996,
the agency managerial officials met with appellant to discuss her
reassignment/career opportunities. According to the agency, during the
subject discussions, appellant only wished to discuss a promotion to a
GS-14, State Conservationist position. The agency stated that appellant
was, subsequently, reassigned to a Management Analyst position effective
August 4, 1996. Based on the foregoing, the agency determined that it
complied with the terms of the settlement agreement.
On appeal, appellant contends that the agency breached item 3 of the
settlement agreement. Specifically, appellant denies that she and the
agency managerial officials discussed her reassignment opportunities in
July and August 1996. Appellant contends that during the meetings, she
unsuccessfully asked the agency managerial officials what education and
experience she must acquire to become a GS-14, State Conservationist.
Finally, appellant states that effective August 4, 1996, she was
reassigned to a permanent Management Analyst position and she was pleased
with that reassignment.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. �1614.504 provides that if the complainant
believes that the agency failed to comply with the terms of a settlement
agreement, the complainant should notify the Director of Equal Employment
Opportunity, in writing, of the alleged noncompliance with the settlement
agreement, within thirty (30) days of when the complainant knew or should
have known of the alleged noncompliance. The complainant may request that
the terms of the settlement agreement be specifically implemented or,
alternatively, that the complaint be reinstated for further processing
from the point processing ceased.
The agency shall resolve the matter and respond to the complainant,
in writing. If the agency has not responded to the complainant, in
writing, or if the complainant is not satisfied with the agency's attempt
to resolve the matter, the complainant may appeal to the Commission for
a determination as to whether the agency has complied with the terms of
the settlement agreement or final decision.
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.
Appellant alleged that the agency breached item 3 of the settlement
agreement, dated January 19, 1995, when the agency failed to review
reassignment opportunities with her within 6 months of the date of the
settlement agreement. The agency stated that after appellant's filing
of the noncompliance allegation, the agency managerial officials met with
appellant in July and August 1996, to discuss reassignment opportunities.
Appellant contends that the officials refused to discuss what education
and experience she must acquire in order to become a GS-14, State
Conservationist. Initially, we note that the plain language of the
agreement states that the agency would review reassignment opportunities,
not promotional opportunities, with appellant. On appeal, while not
disputing that she met with agency officials in July and August 1996,
appellant denies that reassignment opportunities were discussed. We note,
however, that appellant does not indicate what was discussed during the
identified meetings. Furthermore, we note that appellant was reassigned
to a Management Analyst position effective August 4, 1996, and appellant
states that she is pleased with the subject reassignment. Based on the
foregoing, we find that the agency cured any alleged noncompliance by
reassigning appellant to the subject managerial position. See Covington
v. USPS, EEOC Appeal No. 01913211 (September 30, 1991).
CONCLUSION
Accordingly, the agency's decision finding no breach of the settlement
agreement is AFFIRMED.
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 (S0993)
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. 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 (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:
March 16, 1999
DATE Ronnie Blumenthal, Director
Office of Federal Operations