0120120904
05-04-2012
Belinda J. Pugh, Complainant, v. Mike Donley, Secretary, Department of the Air Force, Agency.
Belinda J. Pugh,
Complainant,
v.
Mike Donley,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 0120120904
Agency No. 7K0J11011
DECISION
Complainant filed a timely appeal with this Commission from a letter by the Agency dated November 14, 2011, finding that it was unable to implement the terms of a June 6, 2011 settlement agreement, and remanding the underlying complaint for further processing. See 29 C.F.R. � 1614.402; 29 C.F.R. � 1614.504(b); and 29 C.F.R. � 1614.405.
BACKGROUND
At the time of the events at issue, Complainant was employed as a GS-11 Librarian at Tyndall Air Force Base. Complainant sought EEO counseling alleging she was being subjected to discriminatory harassment. Complainant requested as a remedy that the Agency command should "insure that I am going to work in a non-hostile work environment free of bullying just as is afforded the other employees."
On June 6, 2011, Complainant and the Agency entered into a settlement agreement to resolve a matter. The settlement agreement provided, in pertinent part, that:
Within thirty (30) calendar days, a Request for Personnel Action (RPA), will be submitted to the Civilian Personnel Flight to reassign [Complainant] to the GS-11, Education Specialist position with no loss in pay. Reassignment will be effective when position becomes unencumbered.
By letter to the Agency dated October 6, 2011, Complainant alleged breach. Specifically, Complainant alleged that the Agency did not reassign her to the Education Specialist position pursuant to the above referenced provision of the subject agreement.
In its November 14, 2011 final decision, the Agency determined that it was unable to implement the terms of the settlement agreement because Complainant does not possess the minimum required educational qualifications for the Education Specialist position. Specifically, the Agency stated that the Civilian Personnel Office (CPO) had reviewed Complainant's resume and determined that Complainant was not eligible for the subject Education Specialist position offered to her for reassignment. The Agency acknowledged that a Deputy Commander of the 325th Force Support Squadron (FSS) who signed the agreement indicated that Complainant could fill the subject position because she had a Masters Degree in Library Science. However, despite this assessment by the Deputy Commander, CPO determined that Complainant's degree did not reflect sufficient adult education or counseling credits to qualify. The Agency further noted that in August 2011, CPO met with Complainant to see if she would accept a temporary detail while she acquired the credits. The Agency noted, however, an Agency policy would not allow for a detail into a position for which Complainant was not already qualified, and therefore, the temporary detail offer was withdrawn.
Further, the Agency stated that in approximately September 2011, the Deputy Commander offered to detail Complainant to a temporary position of Education Assistant, GS-1702-07, with no loss of pay or benefits from her current position. The Agency noted, however, discussions concerning the detail broke down between Complainant and 325th FSS, for the Agency was not able to ensure that a permanent position and reassignment would be available after the 120-day detail, as originally contained in the settlement agreement.
Moreover, the Agency notified Complainant that she has the right to have the Agency reinstate her complaint from the point which processing had ceased and appeal its decision to the Commission within thirty days of receipt.
The instant appeal from Complainant followed. On appeal, Complainant argues that the Agency failed to implement the terms of the agreement. Specifically, Complainant argues that in November 2011, she was informed that the Librarian position she occupied "was being abolished. If the agreement had been enacted as agreed to, I would have been in a permanent position that was not being abolished. My perception is that the position was abolished to 'get rid of the problem.'"
In response, the Agency states that because the promised reassignment to the Educational Specialist position was foreclosed under competitive service regulations, the only available remedy for Complainant was reinstatement of her underlying complaint. The Agency notes that because Complainant elected to request specific performance of the settlement agreement, it began processing her underlying complaint from the point at which processing ceased on February 7, 2012.
ANALYSIS AND FINDINGS
A settlement agreement that has been knowingly and voluntarily agreed to by the parties, reached at any stage of the complaint process, is binding on both parties. 29 C.F.R. � 1614.504(a). Settlement agreements are contracts between the appellant and the agency; it is the intent of the parties as expressed in the contract 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, the Commission has generally relied on the plain meaning rule. Hyon v. U.S. Postal Serv., EEOC Request No. 05910787 (December 2, 1991). Thus, if a writing is plain and unambiguous on its face, we will determine its meaning from the four corners of the instrument, without resort to extrinsic evidence of any sort. Klein v. Department of Housing and Urban Development, EEOC Request No. 05940033 (June 30, 1994).
We note that the Agency states that it has not and will not reassign Complainant to the GS-11 Education Specialist position, as promised in the settlement agreement. Upon review of the record, the Commission acknowledges that the Agency has submitted documentation reflecting that the Office of Personnel Management qualification standards indeed seem to preclude Complainant's placement into the position identified in the settlement agreement. The Agency concedes that, "unfortunately, this deficiency was not identified until after the Settlement Agreement was signed...." In that regard, the Agency is admonished in the future to have appropriate Agency officials properly review settlement agreements prior to their execution in order to avoid conflicts similar to those in this situation. See e.g, Rathbone v. United States Postal Service, EEOC Request No. 05910050 (March 7, 1991).
As the Agency has breached the subject settlement agreement, the Commission determines that Complainant shall be provided one of two separate options: (a) the Agency shall offer Complainant another permanent reassignment to a GS-11 position for which she qualifies comparable to the one promised her in the settlement agreement; or (b) if Complainant declines any such reassignment, the underlying complaint will be reinstated from the point where processing ceased.
This matter is REMANDED to the Agency for further processing in accordance with the ORDER below.
ORDER
The Agency is ORDERED to take the following actions:
1. Within sixty (60) calendar days of the date this decision becomes final, the Agency shall provide Complainant with a written offer of a permanent reassignment to a GS-11 position for which she qualifies that is comparable to the one identified in the settlement agreement. Complainant shall have thirty (30) days from the date of receipt to accept or decline the Agency's offer.
2. If Complainant declines the reassignment offer, the Agency shall reinstate her underlying EEO complaint from the point processing ceased, pursuant to 29 C.F.R. � 1614.108 et seq.
The Agency is further directed to submit a report of compliance, as provided in the statement entitled "Implementation of the Commission's Decision." The report shall include supporting documentation verifying that the corrective action has been implemented.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610)
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 77960, Washington, DC 20013. 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 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) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. � 1614.409.
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 (R0610)
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 (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
May 4, 2012
__________________
Date
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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