Sherry McFall v. Department of Agriculture
01A44900
October 26, 2004
.



Sherry McFall,
Complainant,

v.

Ann M. Veneman,
Secretary,
Department of Agriculture,
Agency.

Appeal No. 01A44900

Agency No. 99-0080



DECISION

Complainant filed an appeal with this Commission alleging that the
agency breached the terms of the November 5, 2001 settlement agreement
into which the parties entered.  On August 24, 2004, the agency issued
what the Commission will deem to be a decision finding that it was in
compliance with the settlement agreement.

The settlement agreement provided, in pertinent part, that:

The Agency agrees to place [complainant] on a day shift in Harlingen,
Texas as part of a medical accommodation, and under the supervision
of a Port Director or a Senior Officer or a Supervisor or any person
acting in the capacity of the aforementioned officials, and consistent
with her current assignment. [Complainant's] non-rotational shift and
request for placement under the supervision of a supervisor is to be
reevaluated every 12 months and can only be renewed upon presentation of
proper documentation from a physician showing that such an accommodation
(day shift and placement under the supervision of a Port Director or
Senior Supervisor or Supervisor or any person acting in the capacity
of the afore mentioned officials) was necessary and is not undue burden
to the Agency.  It is understood that [complainant] would initiate the
request for review.  The Agency also agrees that should [complainant's]
work unit in Harlingen, Texas [cease] to exist within five (5) years from
this agreement, that it will reassign [complainant] to Los Indios, Texas
or any other location within thirty (30) miles from Brownsville, Texas.

By letter dated June 24, 2004, complainant alleged that the agency was in
breach of the terms of the November 5, 2001 agreement.  Specifically,
complainant alleged that supervisory management failed to properly
supervise her.  Complainant stated that she followed the requirements
for the production of medical documentation every twelve months,
in accordance with the agreement.  Complainant stated that she was
placed in a flextime schedule nine hour days from 0700 - 1630 hours.
She claimed that management did not properly supervise her from 0700-0730
or 1600-1630 hours each day or any other day when management was absent
and no other officer was placed in charge.  As a result, she claimed
that her performance declined.  Complainant stated that she discovered
the agency's breach on June 14, 2004, while compiling a request for
documents for an EEO case currently on file.

In its August 24, 2004 decision, the agency concluded that the settlement
agreement was not breached.  The agency stated that complainant is
under the direct supervision of Person A, Supervisor, Harlingen Work
Unit, Harlingen, Texas.  Person A stated that when he is not available,
complainant is under the supervision of the Port Director, Person B.
The agency stated that the Harlingen Work Unit has no night shift and
that complainant's hours are from 7:30 a.m. to 4:00 p.m., Monday through
Friday.  The agency noted that complainant has not received less than
a “Fully Successful Rating” on her performance evaluation.

On appeal, complainant states that the agency did not follow her
doctor's request for supervision and she claims that as a result her
performance declined.  Complainant states that management worked from
0730 to 1600 hours and did not have a person acting in official capacity
as a supervisor beginning in June 2003.  Complainant states that based
on her medical condition, she needs to be able to contact a supervisor
as needed as part of her reasonable accommodation.  Complainant supplies
a copy of the work schedule showing that she worked from 7:00 -4:30 with
the second Friday off and 7:00-3:30 on the second Thursday.

The record contains an August 24, 2004 statement from Person A stating
that complainant is under his direct supervision.  Person A states that
when he is not available, complainant is under the supervision of Port
Director, Person B.  Person A states that complainant's hours are from
7:30 to 4:00, Monday through Friday.

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 O 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).

Upon review of the record, we find that the agency has shown that
it substantially complied with the terms of the November 5, 2001
settlement agreement.  Provision (3) states that the agency will place
complainant on a day shift as part of a medical accommodation, and under
the supervision of a Port Director or a Senior Officer or a Supervisor
or any person acting in the capacity of the aforementioned officials,
and consistent with her current assignment.  Complainant claims that
the agency breached the agreement by not providing her a supervisor from
7:00-7:30 in the mornings and 4:00-4:30 in the afternoons while she worked
a flextime schedule.  The agency states that complainant worked 7:30-4:00
and was supervised directly by Person A.  The record contains Person
A's statement that he was complainant's supervisor and that Person B was
her supervisor when Person A was absent.  Complainant does not dispute
the agency's contention that Person A was her direct Supervisor and
that Person B served as her supervisor in Person A's absence.  Further,
complainant acknowledges that Person A and Person B worked from 7:30 in
the morning to 4:00 in the afternoon.  In the present case, we find that
the agency has substantially complied with the settlement agreement.


Accordingly, the agency's decision finding no breach of the settlement
agreement is AFFIRMED.


STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0701)

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), 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 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 (S0900)

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

October 26, 2004
__________________
Date