0120113613
11-21-2012
Carolyn Clements, Complainant, v. John M. McHugh, Secretary, Department of the Army, Agency.
Carolyn Clements,
Complainant,
v.
John M. McHugh,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120113613
Agency No. ARBELVOIR09NOV05286
DECISION
Complainant filed an appeal with this Commission from a final decision by the Agency dated June 3, 2011, finding that it was in compliance with the terms of the settlement agreement into which the parties entered. For the following reasons, the Commission AFFIRMS the Agency's final decision.
BACKGROUND
On April 21, 2010, Complainant and the Agency entered into a settlement agreement. The settlement agreement provided, in pertinent part, that:
3. The Agency agrees to:
a. Forward a new Position Description to the Fort Belvoir Civilian Personnel Advisory Center (CPAC) for classification in accordance with paragraph 3b. Complainant's current Position Description #AS152341 does not accurately describe the duties she has been performing. Complainant has drafted a new Position Description, which she believes accurately reflects the duties of the position. The parties understand that [Person A], Director, Enterprise Software Directorate, will urge, expeditious classification of the new Position Description by the CPAC, but does not supervise or control the CPAC.
b. That [Person B], or another designee of Person C of the Business Management Directorate, will assist [Complainant] to appropriately format the Position Description for classification and to answer such questions as the Business Management Directorate may determine will assist the Civilian Personnel Advisory Center to appropriately classify the position. The Business Management Directorate will have four weeks from the day that [Complainant] forwards to the Business Management Directorate her initial answers to [Person B's] questions, which were forwarded to [Complainant] by e-mail on 24 November 2009. At the end of the four weeks allowed for Business Management Directorate formatting and clarification, the new, revised Position Description will be forwarded to the Fort Belvoir Civilian Personnel Advisory Center (CPAC) for classification. If further clarifications are required, they will be provided to the Fort Belvoir Civilian Personnel Advisory Center (CPAC).
c. If this new Position Description is classified at the Band IV level, [Person A], or his designee, will contact the customer to request that the customer, Office of the Assistant Secretary of Defense for Networks and Information Integration (ASD NII), Department of Defense Chief Information Officer (DoD CIO) fund the position. If the position is funded; then, the position will be competed through a vacancy announcement open to the public and the Complainant may apply and compete for the position.
4. [Complainant] agrees to:
a. Forward her initial answers to [Person B's] questions, which were forwarded to [Complainant] by e-mail on 24 November 2009 to clarify the job description for forwarding to the Civilian Personnel Advisory Center. She agrees to forward them no earlier than 3 May 2010. At the end of the four weeks allowed for Business Management Directorate formatting and clarification, the new, revised Position Description will be forwarded to the Fort Belvoir Civilian Personnel Advisory Center (CPAC) for classification.
b. [Complainant] will provide additional information and/or documentation to [Person B], or another designee in the Business Management Directorate, as requested to allow [Person B], or another designee in the Business Management Directorate, to appropriately format the Position Description for classification and to answer such questions as the Business Management Directorate may determine will assist the Civilian Personnel Advisory Center to appropriately classify the position.
6. If the [C]omplainant believes that the Army has failed to comply with the terms of this settlement agreement, the [C]omplainant shall notify the Office of EEO/Civil Rights (Deputy for EEO Compliance and Complaints Review (EEOCCR), ATTN: SAMR-EOCCA, 1941 Jefferson Davis Highway, Suite 109B, Arlington, Virginia 22202-4508, in writing, of the alleged noncompliance within 30 calendar days of when the [C]omplainant knew or should have known of the alleged noncompliance.
By letter to the Agency dated March 30, 2011, Complainant alleged the Agency was in breach of the settlement agreement. Specifically, Complainant stated that while she was reviewing the terms of the settlement agreement on April 21, 2010, she asked the EEO Specialist where in the agreement it stated that Complainant was entitled to back pay. Complainant acknowledged that the EEO Specialist told her the document did not have any information on back pay. Complainant stated she then spoke with the Agency Attorney and asked the same question. Complainant claimed the Agency Attorney told her that the language in paragraph (6) of the settlement agreement addressed Complainant's concerns and that she needed to refer all her concerns to the address stated in the agreement. Complainant argues that there was a breach of the agreement in that the Agency lead her to believe that the language in paragraph (6) covered her back pay concerns.
In its June 3, 2011 final decision, the Agency concluded that it did not breach the April 21, 2010 settlement agreement. The Agency noted that the settlement agreement did not contain a provision requiring it to provide back pay to Complainant. The Agency stated that prior to signing the settlement agreement, Complainant was aware that the agreement did not require the Agency to provide her back pay and cited the Declaration of the Agency Attorney in support of this.
Thereafter, Complainant filed an appeal. On appeal, Complainant states that she performed duties as a Band IV and deserved to be paid at that level. Complainant also states that she worked without any problem from 1999 to 2011 with problems. She states that after she filed a complaint, she was told that her skills were no longer needed in OSD and she was placed with another customer.
In response to Complainant's appeal, the Agency stated that Complainant's claim that she was mislead that she was getting back pay is factually inaccurate. The Agency noted that it complied with the terms of the settlement agreement in having Complainant's duty position classified. However, it stated that the customer to whom Complainant was matrixed, did not fund the higher-graded position and removed the higher graded duties from Complainant's position.
Specifically, the Agency noted that Person B met with Complainant to discuss her position description on May 17, 2010. The Agency noted a position description was forwarded for classification on May 26, 2010. The Agency explained that on May 26, 2010, Person A told Complainant in an electronic mail message that the position description had been finalized and that he would forward the position description to the customer the following week. The Agency noted Person A told Complainant that upon the customer's concurrence, he would forward it to North Central CPAC and ask that they expedite the classification. The Agency noted that on May 26, 2010, Complainant asked Person A not to proceed with the action.
The Agency cited a May 27, 2010 electronic mail message in which Complainant requested that the new position description be placed on hold due to the fact that her customer had a new Senior Executive Service (SES) employee who wanted to get to know the organization and current job assignments. The Agency noted that Complainant later began rewriting her duties and provided a draft position description on August 17, 2010.
The Agency noted that Complainant worked with CECOM Life Cycle Management Command Software Engineering Center Business Management Directorate (BMD), to format the contents into a position description for classification. The Agency stated that on September 14, 2010, the customer confirmed the duties. The Agency stated that on October 1, 2010, the draft position description was provided to CPAC for preliminary classification.
The Agency stated that based on the duties indentified in the position description, on October 6, 2010, CPAC stated that the duties reflected a GS-14 level work, which equated to a DE-04 level (Band IV level). The Agency noted a position description was developed on October 15, 2010.
The Agency stated that on October 19, 2010, the new position description was provided to the customer, Office of the Assistant Secretary of Defense for Networks and Information Integration, Department of Defense Chief Information Officer (DoD CIO) by Complainant's supervisor (S1). The Agency explained that S1 requested the customer review the duties identified in the new position description, and if they agreed these were her duties, to provide funding for this level of duties.
The Agency noted that on November 18, 2010, the SES Director of Architecture & Infrastructure, Office of the DoD-CIO, stated that he did not require Complainant to perform the duties identified in the new position description. The Agency averred that since the customer did not require the duties identified within the new position description to be performed, no vacancy announcement was required. The Agency noted that thereafter the SES Director met with Complainant to discuss her duties and she agreed to perform these duties, which did not require a new position description.
ANALYSIS
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. Dep't of Def., 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. Dep't 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 O v. U.S. Postal Serv., 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).
Upon review, we find Complainant did not show the Agency breached the terms of the April 21, 2010 settlement agreement. At the outset, we note the settlement agreement did not provide that Complainant would be paid back pay. Moreover, we find Complainant has not shown that she was mislead or coerced by the Agency into signing the agreement.
According to the terms (3)(a)-(3)(b) of the agreement, the Agency was required to assist Complainant in formatting the position description for classification and then forward the newly drafted position description to CPAC for classification. The record reveals that the Agency performed these actions in accordance with the agreement.
We note that the settlement agreement did not guarantee that Complainant's position description would be classified at the Band IV level. Rather, provision (3)(c), stated that if the position is classified at the Band IV level, Person A will contact the customer to fund the position. Additionally, the agreement noted that if the position is funded, then it would be competed through a vacancy announcement open to the public and Complainant may apply and compete for the vacancy. In the present case, the position was determined by CPAC to reflect a Band IV level and a draft position description was forwarded to the customer. In forwarding the draft position description to the customer, S1 requested that if the customer agreed that the duties listed were performed by Complainant, that they provide funding at this level. The record reveals that the customer stated it did not require Complainant to perform the duties in the new position description. The Agency noted that since the customer did not require Complainant to perform the duties within the new position description, no vacancy announcement was required.
CONCLUSION
Accordingly, the Agency's final decision is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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 77960, Washington, DC 20013. 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 (S0610)
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 (Z0610)
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 from the Court that the Court appoint an attorney to represent you and that the Court also 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 with the Court 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
November 21, 2012
__________________
Date
2
01-2011-3613
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120113613