01a10181
01-11-2001
Zonia Cruz, Complainant, v. Louis Caldera, Secretary, Department of the Army, Agency.
Zonia Cruz v. Department of the Army
01A10181
January 11, 2001
.
Zonia Cruz,
Complainant,
v.
Louis Caldera,
Secretary,
Department of the Army,
Agency.
Appeal No. 01A10181
Agency No. BHFRF00911J1900
DECISION
Complainant filed a timely appeal with this Commission from a final
decision (FAD) by the agency dated September 11, 2000, finding that it was
in compliance with the terms of the April 13, 2000 settlement agreement
into which the parties entered.<1> See 29 C.F.R. � 1614.402; 29 C.F.R. �
1614.504(b); and 29 C.F.R. � 1614.405. The settlement agreement provided,
in pertinent part, that the agency shall:
(1) Within ten (10) days of this agreement, assign the full scope of
additional/new duties to the complainant (as stipulated in the draft
job description). If the complainant performs these additional duties
for more than 30 days, the complainant will be formally detailed
with documentation made on SF-52 Request for Personnel Action.
(Section 3(a)).
(2) After the above-mentioned action has been completed, arrange for
the services of a position
classification specialist from a local provider such as [ ] at the
agency's discretion, to perform an on-site job audit to review this draft
position description and validate that the draft is complete and accurate.
The review will be conducted on the earliest date that the complainant
determines she is prepared to discuss her new duties and responsibilities,
subject to the availability of a position classification specialist.
(Section 3(b)).
(3) Within 5 days of the receipt of the validated draft positions
description, management will forward an SF-52 and the validated positions
to the SWCPOC for classification. Once the position has been classified
by SWCPOC classification personnel, complainant will be officially
assigned to the new job description, with the resulting job title,
series code and grade, without competition, with the effective date
being the date the position is classified. (Section 3(c)).
By letter to the agency dated October 26, 2000, complainant alleged that
the agency was in breach of the settlement agreement, and requested that
the agency specifically implement its terms. Specifically, complainant
contends that the agency failed to classify the draft position description
referenced in the settlement agreement, and allowed its classifier to
draft and classify a new position description which did not result in
a grade increase.
In its September 11, 2000 FAD, the agency concluded that after the
finalization of the agreement, complainant was detailed to a new set of
duties effective June 6, 2000. An on-site job audit was conducted in
June 2000 by a contract classifier from the specified local provider, and
after the audit was completed, a draft job description was prepared and
approved by complainant's supervisor. The FAD noted that complainant
did not concur with the position description, but the description
was forwarded to the Civilian Personnel Operations on July 19, 2000.
A notation on the PERACTION Tracking Report indicates that the position
description was determined to be properly classified as an Administrative
Support Assistant (ASA), GS-303-07, on August 7, 2000.
The FAD concluded that the agency met its obligations with regard to
paragraph 3(b) of the negotiated settlement. In so finding, the FAD
noted that a private classifier, not an agency classifier, conducted
the audit and prepared the draft position description. Further, the
FAD noted that the agreement states that once the position has been
classified by Southwest Civilian Personnel Operations Center (SWCPOC)
personnel, complainant would be officially assigned to the new job
description with the resulting job title, without competition, with
the effective date being the date the position is classified. The FAD
noted that although this position does not indicate a grade increase,
the negotiated settlement did not specifically guarantee a promotion.
Thus, the FAD found that the agency was in compliance with the negotiated
settlement agreement.
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 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, complainant alleges that the agency breached the
settlement agreement by not making the draft position description her
position description of record. However, the terms of the settlement
agreement do not require that the agency take this action. The April
13, 2000 settlement called for the agency to assign the full scope of
additional/new duties to complainant, and for the agency to then arrange
an outside position classification specialist to perform an on-site
audit to review the draft position description and validate that the
draft is complete and accurate. While complainant has asserted that
the audit was not performed correctly, she has not claimed that the
agency failed to arrange or facilitate the performance of the audit as
called for in the settlement. The record indicates that the audit was
performed on June 28, 2000, and that the classifier subsequently issued
a position description which was approved by complainant's supervisor
and forwarded to SWCPOC for a position classification. In addition,
although complainant claims that it was understood that the agency would
classify her position at the GS-9 level, the agency was not bound to
do so because this term was not reduced to writing in the agreement.
As noted by the agency's decision, while complainant's new position was
not classified as a grade increase, the language in the settlement did not
specifically guarantee a promotion. Upon review of the record, we find
that the agency did not breach the settlement agreement. Accordingly,
the agency's final decision is hereby AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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 [PAGE 4] 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); 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 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)
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
January 11, 2001
__________________
Date
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 29 C.F.R. Part 1614 in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.