closed0120132178
05-14-2014
Complainant, v. Ray Mabus, Secretary, Department of the Navy, Agency.
Complainant,
v.
Ray Mabus,
Secretary,
Department of the Navy,
Agency.
Appeal No. 0120132178
Agency No. 11-33011-02199
DECISION
Complainant filed an appeal with this Commission from a final decision (FAD) by the Agency dated April 3, 2013, finding that it was in compliance with the terms of the settlement agreement into which the parties entered. See 29 C.F.R. � 1614.402; 29 C.F.R. � 1614.504(b); and 29 C.F.R. � 1614.405.
BACKGROUND
On November 28, 2012, Complainant and the Agency entered into an EEO settlement agreement. The settlement agreement provided, in pertinent part, that:
5(a) Therefore, in consideration of the premises and mutual promises contained herein, the Agency agrees to make a one-time payment of $65,000.00 within 30 to 60 days after the 17th of December 2012.
(10) The Employee agrees that the fact of this negotiated settlement and all terms contained here, [will] be kept confidential, and she agrees not to disclose or discuss the fact of settlement with other Agency employees (except his or her representative and responsible management personnel).
(11) This agreement constitutes the complete understanding between the Employee and the Agency. No other promises or agreement will be binding unless signed by both parties.
By emails to the Agency dated January 31, 2013 and February 14, 2013, Complainant alleged that the Agency was in breach of the settlement agreement and that the Agency was subjecting her to retaliation and harassment. Specifically, Complainant alleged that named Agency management on or about December 18, 2012, met with employees to tell them that Complainant had problems with the Command and filed an EEO complaint and that she needed to find a new job. Complainant also alleged that management failed to address the situation regarding her cost of living allowance (COLA) in her last paycheck. Finally, Complainant alleged that the Agency waited 58 days to pay her the settlement amount which was then sent to the wrong account.
In its April 3, 2013 FAD, the Agency concluded that it was not in breach of the settlement agreement. Regarding Complainant's allegation that management made statements to other employees pertaining to the terms of the settlement agreement, the Agency found that the settlement agreement did not require for management to maintain confidentiality. Regarding Complainant's claim that the Agency failed to pay her COLA, the Agency found that this was not a provision of the settlement agreement. Regarding Complainant's claim pertaining to the settlement payment, the Agency stated "[a]lthough management made the payment to the wrong account as initially provided, the situation was corrected and you did receive your payment." Based on the foregoing, the Agency found that it was not in breach of the settlement agreement.
The instant appeal followed.
On appeal, Complainant asserts that the Agency did not properly handle her EEO complaint. Complainant asserts that she notified the Agency's EEO Office via email dated January 31, 2013 regarding her reprisal/harassment claim. However, Complainant asserts that the Agency failed to process these claims.
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).
In the instant case, Complainant alleges that management made statements pertaining to her EEO activity and the terms of the agreement. We concur with the Agency that while the settlement agreement contains a provision requiring Complainant to maintain confidentiality, the agreement does not contain a provision for Agency management to maintain confidentiality.
However, a review of Complainant's emails dated January 31, 2013 and February 14, 2013, to the Agency's EEO Office reflects that Complainant was not only alleging a breach of the settlement agreement but that she was also being subjected to retaliation and harassment subsequent to the execution of the settlement agreement.1 EEOC Regulation 29 C.F.R. � 1614.504(c) states that allegations that subsequent acts of discrimination violate a settlement agreement shall be processed as separate complaint rather than under the regulatory section regarding compliance with settlement agreements. Accordingly, the Agency should have processed these new claims of discrimination in accordance with 29 C.F.R. 1614.106. The record is devoid of evidence that the Agency provided EEO Counseling to Complainant with respect to her retaliation/harassment claim. Thus, as set forth below, the Agency must consider Complainant's email to be a request for EEO Counseling regarding her retaliation/harassment claim.
Regarding Complainant's claim that COLA was not included in her last paycheck, we concur with the Agency that the settlement agreement did not obligate the Agency to take any action with respect to COLA. Finally, Complainant acknowledges in an email dated February 14, 2013, that she received the payment within the specified time period set forth in the agreement. To the extent that Complainant is alleging, however, that the payment should have been made to her personal savings account rather than her joint checking account, we note that the settlement agreement did not specify which account the payment would be made to.
Accordingly, we AFFIRM the Agency's final decision finding no breach of the settlement agreement. However, we REMAND to the Agency for further processing in accordance with the Order below Complainant's claims of retaliation and harassment.
ORDER
The Agency shall treat the allegations of reprisal/harassment in Complainant's January 31, 2013 and February 14, 2013 emails as a request for EEO counseling, and, and counsel Complainant and process the matters in accordance with 29 C.F.R � 1614.105(b)(1) et seq. To the extent it has not already done so, the Agency shall acknowledge to Complainant that it has received her request for counseling within thirty (30) calendar days of the date this decision becomes final.
A copy of the Agency's letter of acknowledgment to Complainant regarding her counseling request must be sent to the Compliance Officer as referenced below.
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 (T0610)
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 (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 14, 2014
Date
1 In her January 31, 2013 email, Complainant states: "I am writing you in order to file a reprisal EEO complaint..." In her February 14, 2013 email, Complainant states: "[The Command] has continued to harass me and cause me suffering in spite of the settlement agreement. They have violated the settlement...and added further reprisals on me since my settlement."
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0120132178
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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