01a52759
10-19-2005
Cheryl Riley, Complainant, v. Gale A. Norton, Secretary, Department of Interior Agency.
Cheryl Riley v. Department of Interior
01A52759
October 19, 2005
.
Cheryl Riley,
Complainant,
v.
Gale A. Norton,
Secretary,
Department of Interior
Agency.
Appeal No. 01A52759
DECISION
Complainant filed a timely appeal with this Commission from a final
decision by the agency dated January 27, 2005, finding that it was in
compliance with the terms of the October 7, 2004 Settlement Agreement
into which the parties entered.
The October 7, 2004 Settlement Agreement provided, in pertinent part,
that:
(1) Detail the Complainant from her current position, Natural Resource
Specialist, GS-0401�09/01, to the HAZMAT Team, under [Team Leader B],
for a 60-day period, beginning October 11, 2004, to allow the parties
a cooling-off period.
(2) [Supervisor A] and [Team Leader B] will discuss with the Complainant
her role and responsibilities on the HAZMAT Team, while on detail,
within the week of October 11, 2004.
(3) [Supervisor A] will develop an individual development plan for the
Complainant for her current position of Natural Resource Specialist,
GS-0401-09/01 within 60-days of the execution of this agreement.
(4) To improve communication, the Complainant and [Supervisor A] will
meet weekly for a period of at least six months, unless either party is
on leave, travel, or involved in work exigency/emergencies.
Provide team-building training for the Environmental and HAZMAT Group
of the Resource Management Office, beginning November 2004.
By letter to the agency dated December 7, 2004, complainant alleged that
the agency was in breach of the October 7, 2004 Settlement Agreement, and
requested that the agency specifically implement its terms. Specifically,
complainant alleged that the agency failed to maintain confidentiality
and failed to prevent the on-going harassment.
In its January 27, 2005 final decision, the agency concluded that it
did not breach the terms of the October 7, 2004 Settlement Agreement.
With regard to provision (1), the agency states that complainant received
a detail to the HAZMAT team for a 60-day period. With regard to provision
(2), the agency states that complainant met with the Supervisor A and
HAZMAT Team Leader B to discuss her work assignments on October 12, 2004
and on October 13, 2004. With regard to provision (3), the agency states
that on December 7, 2004, complainant received an individual development
plan covering her detail to the HAZMAT Team and on December 17, 2004,
complainant received a draft individual development plan covering her
position of Natural Resource Specialist. The agency states that due to
complainant's extended leave status the individual development plan has
not been implemented. With regard to provision (4), the agency states
that complainant and the Supervisor A held weekly meetings on October
22, October 27, and November 24, 2004. With regard to provision (5),
the agency states that a team building training session was held on
December 13 and 14, 2004. We find that the agency properly advised
complainant to seek EEO counseling if she wished to pursue claims of
subsequent discrimination and harassment.
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).
We find that there was insufficient evidence in the record to determine
whether the agency breached provision (1) of the October 7, 2004
Settlement Agreement. Although the October 7, 2004 Settlement Agreement
is void of any prohibition against complainant working with Supervisor
B (the supervisor complainant accused of harassment), it does entitle
complainant to a 60-day detail to the HAZMAT Team to allow for a "cooling
off period." On appeal, complainant argues that although it appears as
if the agency granted her a detail, a significant percentage of her job
duties on the �detail� actually required her to work with Supervisor B.
Complainant argues that she did not receive the 60-day cooling off period
as provided for in the October 7, 2004 Settlement Agreement. The agency
has failed to address complainant's assertion that during her 60-day
detail she performed duties that required her to work with Supervisor
B or to be supervised by Supervisor B. Therefore, we shall remand the
matter so the agency can supplement the record with evidence addressing
whether complainant's detail was just a "paper" detail or whether she
was working predominately under the supervision of Team Leader B.
In the instant case, we find that complainant failed to show that the
agency breached provisions (2) - (5) of the October 7, 2004 Settlement
Agreement. With regard to provision (2), complainant met with the
management officials to discuss her duties during the 60-day detail
and submitted a work plan showing the amount of hours she needed to
complete each work assignment . With regard to provision (3), the record
contains copies of complainant's individual development plans. With
regard to provision (4), both complainant and the agency acknowledge
that complainant and Supervisor A met weekly as agreed. With regard to
provision (5), complainant and management acknowledge that team building
training was conducted. With regard to complainant's claim that the
agency violated the confidentiality provision of the agreement, we find
that the settlement agreement did not include a confidentiality provision.
Therefore, there is no breach of any confidentiality provision.
The mediation documents referred by complainant to show a confidentiality
provision are not part of the October 7, 2004 Settlement Agreement.
The agency's decision finding no breach of provisions (2) - (5) of the
October 7, 2004 Settlement Agreement is AFFIRMED. The agency's decision
finding no breach of provision (1) of the October 7, 2004 Settlement
Agreement is VACATED and the matter is REMANDED to the agency for further
processing in accordance with this decision and applicable regulations.
ORDER
The agency shall put evidence into the record showing whether it
complied with provision (1) of the October 7, 2004 Settlement Agreement.
The agency shall provide evidence showing whether during complainant's
detail complainant's job duties required her to predominantly work under
Team Leader B, as provided for in provision (1). The agency, within 30
calendar days of the date this decision becomes final, must issue a new
decision addressing whether the agency has complied with provision (1)
of the settlement agreement. A copy of the new decision must be sent to
the Compliance Officer as referenced herein.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
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 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 (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 (T0900)
This decision affirms the agency's final decision/action in part, but it
also requires the agency to continue its administrative processing of a
portion of your complaint. 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 on both that portion
of your complaint which the Commission has affirmed and that portion
of the complaint which has been remanded for continued administrative
processing. 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 your appeal with the Commission, until
such time as the agency issues its final decision on your complaint.
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 19, 2005
__________________
Date