01994544
04-18-2000
Laurae A. Olison, Complainant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.
Laurae A. Olison, )
Complainant, )
)
v. ) Appeal No. 01994544
) Agency No. 92-1570
Togo D. West, Jr., )
Secretary, )
Department of Veterans Affairs, )
Agency. )
____________________________________)
DECISION
On May 11, 1999, complainant filed a timely appeal with this Commission
from an agency's decision dated April 9, 1999, finding that it complied
with the terms of the September 20, 1993 settlement agreement into which
the parties entered.<1>
In the September 20, 1993 settlement agreement, the agency agreed,
in pertinent part, to:
Reassign the complainant from her current position as a Procurement
Clerk to a position as a Purchasing Agent at the GS-5 level, effective
no later than forty-five days from the date of this agreement;
Provide the complainant with a fair and equitable work environment
free from harassment or any other discrimination based on race, color,
religion, sex, national origin, age, disability, or reprisal for filing
these complaints.
By letter dated January 21, 1999, complainant alleged that the agency
breached the settlement agreement, and requested that the agency
specifically implement its terms. Specifically, complainant alleged that
the agency changed her position description (PD) to reflect clerical
duties rather than those of a Purchasing Agent. Complainant contended
that this action violated provision (d) of the agreement, and also
constituted reprisal in violation of provision (e).
In its April 9, 1999 decision, the agency concluded that it had not
breached the settlement agreement. Specifically, the agency found that
complainant was alleging harm from subsequent acts that must be processed
as separate complaints, not claims of breach. The agency instructed
complainant to contact an EEO Counselor within forty-five days if she
believed that the actions were discriminatory.<2>
The question of whether a breach has occurred requires interpretation
of the settlement agreement. The Commission applies ordinary rules
of contract construction to settlement agreements. See Herrington
v. Department of Defense, EEOC Request No. 05960032 (December
9, 1996). The intent of the parties 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 relies
on the plain meaning rule. See Hyon v. United States Postal Service,
EEOC Request No. 05910787 (December 2, 1991).
In the present case, the agreement is silent regarding how long
complainant's Purchasing Agent position would remain unchanged. In such
cases, the Commission has held that a settlement agreement placing
a complainant into a specific position, without defining the length
of service or other elements of the employment relationship, will not
be interpreted to require the agency to employ the complainant in the
identical job forever. See Papac v. Department of Veterans Affairs, EEOC
Request No. 05910808 (December 12, 1991). Further, the agreement did not
prohibit the agency from changing the duties of her position. Therefore,
the agency's act of changing complainant's position description five years
after the agreement was signed, without affecting her title or pay status,
was not a breach of the settlement agreement. See Holley v. Department of
Veterans Affairs, EEOC Request No. 05950842 (November 13, 1997) (finding
no breach where the agency moved the individual out of a position that
she received several years prior pursuant to a settlement agreement).
Complainant also argues that the changes violated section (e) of
the settlement agreement, a �no reprisal� clause. A complaint which
alleges reprisal or further discrimination in violation of a settlement
agreement's "no reprisal" clause, must be processed as a separate
complaint and not as a breach of settlement. 29 C.F.R. � 1614.504(c).
Therefore, the agency properly instructed complainant to seek counseling
regarding her claim of reprisal.
CONCLUSION
Accordingly, the agency' s dismissal is 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 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:
April 18, 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 complainant, complainant's representative
(if applicable), and the agency on:
_______________ __________________________
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 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.
2On appeal, complainant noted that she filed a formal complaint as
instructed in the agency decision.