01a02168
04-06-2000
Gwendolyn B. Tyson, Complainant, v. Donna E. Shalala, Secretary, Department of Health and Human Services, Agency.
Gwendolyn B. Tyson v. Department of Health and Human Services
01A02168
April 6, 2000
Gwendolyn B. Tyson, )
Complainant, )
)
v. ) Appeal No. 01A02168
) Agency No. 97-049-HCF
Donna E. Shalala, )
Secretary, )
Department of Health and Human )
Services, )
Agency. )
)
DECISION
The complainant timely filed an appeal with this Commission from the
agency's failure to take final action on her breach of settlement
agreement claim under 29 C.F.R. �1614.504.<1> The Commission accepts
the complainant's appeal pursuant to 64 Fed. Reg. 37,644, 37,659 (1999)
(to be codified at 29 C.F.R. � 1614.405).
The parties entered into a settlement agreement on February 3, 1999.
Therein, the complainant agreed to withdraw her formal complaint of
discrimination based on her age ( agency case number
97-049-HCF, EEOC Hearing No. 120-98-9884). The agency agreed to
provide the complainant with training in how to prepare for an audit,
to conduct a desk audit of her position, and, "[i]f the desk audit shows
that Complainant is performing work outside her series, to re-classify
her position."
By letter of July 6, 1999, the complainant notified the Director of the
agency's Office of Equal Opportunity and Civil Rights that the agency
had failed to re-classify the complainant's position in accordance with
the terms of the settlement agreement following the desk audit of the
complainant's position. When the agency did not respond, the complainant
filed this appeal.
On appeal, the complainant contends that in an Audit Summary Report, dated
March 18, 1999, the auditor stated that the complainant performs the same
tasks as the GS-107/9/ll health insurance specialists. The complainant
represents that the auditor also indicated that this function was the most
critical aspect of the work performed by the employee. The complainant
requests that the Commission order the agency to re-classify her position
as a GS-107-9 Health Insurance Specialist.
The question of whether a breach of a settlement agreement has occurred is
one of contract interpretation. The Commission repeatedly has held that
a settlement agreement between an EEO complainant and a federal agency
is a contract subject to ordinary principles of contract interpretation
and construction. See, e.g., Diyan v. United States Postal Service,
EEOC Request No. 05950032 (February 23, 1996) and Elliott v. United
States Postal Service, EEOC Request No. 05950615 (December 13, 1995).
Generally, when interpreting the language of settlement agreements,
the Commission applies the "plain meaning" rule, that is, when the
settlement agreement language is plain and unambiguous on its face, its
meaning is derived from the agreement's terms without consideration of
evidence from outside of the agreement. See id. and Klein v. Department
of Housing and Urban Development, EEOC Request No. 05940033 (June 30,
1994); see also, J. Calamari & J. Perillo, Contracts �3-10, at 166-67
(3d ed. 1987). The Commission makes determinations about the parties'
intent in accordance with the plain, ordinary and common sense of
the words used in the agreement. Klein v. Department of Housing and
Urban Development, EEOC Request No. 05940033 (June 30, 1994). However,
where the terms of the agreement are ambiguous or for equitable reasons,
the Commission may go beyond the language of the agreement to ascertain
the intent of the parties. Wong v. United States Postal Service, EEOC
Request No. 05931097 (April 29, 1994).
Applying these rules of contract interpretation, the Commission finds
that the agency promised to reclassify the complainant's position if
the desk audit showed that the complainant was performing work outside
the GS-303 series.
At the time of the agreement, the complainant's position was classified
as a GS-303-7 position in the Miscellaneous Clerks and Assistant Series.
She sought to have her position reclassified as a GS-107-9 position in
the Health Insurance Administration Series. The agency's Audit Decision
determined that approximately 90% of the work of the assistant position
included the following duties: writing analytical/statistical reports
and correspondence based upon data requests; inputting, updating,
and retrieving data from beneficiary payment records/reports; writing
non-routine correspondence and reports relative to the program area;
responding to inquires from the public; and identifying and clarifying
problem issues involving beneficiary payments. Although the agency's
Audit Decision concluded that these duties were consistent with the type
of work covered by the GS-303 classification standard, the record does
not support this conclusion in that the agency failed to include in the
record a copy of the GS-303 classification standards on which it relied.
However, the Commission takes administrative notice of the classification
standard issued by the Office of Personnel Management (OPM) for the
GS-303 Miscellaneous Clerks and Assistant Series (November 1, 1979)
that was referenced in the agency's Audit Decision. That standard
specifically excludes from its coverage positions that involve work which
requires knowledge of specialized processes or subject matter for which
a specific series exists. The standard also explains the difference
between assistant or technician work and the work of administrative or
program specialist trainees. The assistant workers carry out specific
procedures and use established methods. Problems and issues that do not
fit within the scope of established guidelines are usually referred to
administrative or program specialists for resolution. For administrative
or program specialist trainees, such assignments are a temporary stage in
their development to do work of a more judgmental and analytical nature.
Based on this guidance, and the description of the duties contained in
the Audit Decision, the Commission finds that the assistants perform
work which requires knowledge of specialized processes or subject
matter for which a specific series exists, i.e., the GS-107 Health
Insurance Administration Series. For this reason, it appears that the
assistant's work is not properly classified in the GS-303 Miscellaneous
Clerks and Assistant Series. In addition, the assistants admittedly
perform analytical work and work that requires judgment, for example,
writing non-routine correspondence and reports relative to the program
area. This non-routine work, consistent with the GS-303 Classification
Standards, would more properly be classified in an administrative series,
in this case, the Health Insurance Administration Series. Based on these
findings, the Commission concludes that the description of the assistant
duties set forth in the Audit Decision does not support the agency's
classification of the complainant's position in the GS-303 series.
More importantly, however, the Commission observes that in the settlement
agreement the agency agreed to perform a conduct a desk audit of the
complainant's position. The Commission finds that the Audit Decision does
not constitute a report of a desk audit in that it describes and discusses
assistant duties generally, rather than describing and classifying
the duties specifically performed by the complainant. The Commission
finds that the only document in the record which specifically reports
the results of a desk audit of the complainant's position is a document
submitted on appeal by the complainant, entitled Audit Summary Report
and dated March 18, 1999. The Report describes the complainant's job
duties in detail. These job duties are not of a routine nature that
would justify classification in the GS-303 Miscellaneous Clerks and
Assistant Series. The Report also describes the knowledge the complainant
possesses that is required to identify and resolve problems related to
Medicare beneficiary entitlement and enrollment. Again, this knowledge
appears to be knowledge of specialized processes and subject matter for
which a specific series exists. As to supervision received, according
to the Report, the complainant works independently on the same types
of assignments as the GS-107 Health Insurance Specialists. Her work,
like the work of the GS-107 Health Insurance Specialists, is reviewed
by a GS-11 Health Insurance Specialist on a 10% random sample basis.
Again, these factors point to classification in the Health Insurance
Specialist series, not the Miscellaneous Clerks and Assistant Series.
CONCLUSION
Based on the above, the Commission finds that the agency was required
under the terms of the settlement agreement to reclassify the
complainant's position to the GS-107 series. Because the agency has
not done so, the Commission finds that the agency failed to comply
with the terms of the agreement. To remedy the non-compliance, the
Commission orders the agency to specifically comply with the agreement
by reclassifying the complainant's GS-7 position to the GS-107 Health
Insurance Specialist series.
ORDER
The agency is ORDERED to reclassifying the complainant's GS-7 position
to the GS-107 Health Insurance Specialist series. The agency shall
complete this action within thirty (30) calendar days of the date this
decision becomes final.
The agency shall provide copies of the Notification of Personnel Action
form that effectuates the reclassification of the complainant's position
to the complainant, her representative, and the Compliance Officer
as referenced below within thirty (30) calendar days of the date this
decision becomes final.
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 (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 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 (R0400)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court WITHIN NINETY (90) CALENDAR DAYS from the date
that you receive this decision. 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 filed your appeal with the
Commission. 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. 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:
April 6, 2000
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 the complainant, the complainant's representative,
and the agency on:
DATE Equal Employment Assistant
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.