Complainant,v.Ray Mabus, Secretary, Department of the Navy, Agency.

Equal Employment Opportunity Commission

Mar 7, 2013

0120121485 (E.E.O.C. Mar. 7, 2013)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

,
Complainant,

v.

Ray Mabus,
Secretary,
Department of the Navy,
Agency.

Appeal No. 0120121485

Agency No. 11-65888-03999

DECISION

Upon review, the Commission finds that the Agency properly determined that it did not breach
a settlement agreement that the parties entered into resolving Complainant’s complaint. See 29
C.F.R. § 1614.504. For the following reasons, we AFFIRM the Agency’s determination not
to reinstate Complainant’s complaint.

BACKGROUND

On October 27, 2011, the parties entered into a settlement agreement resolving the complaint.
The settlement agreement provided, in pertinent part, that:

2. a. Within 30 days of signature, Management will speak to [the identified F-18 Program
Manager] for him to consider a new area/office in which to locate the Quality
Assurance Specialists (QAS) on the F-18 Program.

b. Within 30 days of signature, Management agrees to procure a partition to cover the
walls behind [Complainant’s] desk in her current location.

Thereafter, on December 14, 2011, Complainant claimed that the Agency did not comply with
the settlement agreement. On December 28, 2011, the Agency issued its determination that it
did not breach the settlement agreement. Specifically, the Quality Assurance Division Head
provided his statement indicating that he spoke with the Program Manager concerning new
areas that might be acceptable to move his QAS. The Division Head indicated that he was
currently moving one employee to a new location and would be moving an additional employee
after the first of the year. The Division Head also indicated that he directed the procurement
of a partition to cover the walls behind Complainant’s desk and it was in place at this time.
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On appeal, Complainant contends that the Agency failed to comply with the terms of the
agreement within the 30-day time limit provided therein. Complainant also indicates that she is
still subjected to harassment concerning her leave, training, and work assignments.
Complainant states that although the intent of the settlement was to improve her standing,
instead, the Agency improved the office environment for others, and not for her, by moving
them to newly furnished indoor office. Also, Complainant indicates that it was not until
December 14, 2011, that the Agency simply moved two existing and dirty panels which were
nearby to cover her walls.

ANALYSIS AND FINDINGS

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).

Complainant claimed that the Agency breached the terms of the settlement agreement at issue.
With regard to item 2.a., despite Complainant’s claim, management did speak to the identified
F-18 Program Manager for him to consider a new area/office in which to locate QAS on the F-
18 Program. Although Complainant expected to be moved to a new area/office under this
provision, this expectation was not specifically expressed under the terms of the settlement
agreement.

With regard to item 2.b., Complainant indicates that the Agency did not procure a partition
until December 14, 2011, which was beyond the 30-day time limit under the settlement
agreement. The Division Head stated that he directed the Supervisory Quality Assurance
Specialist to install a partition behind the Complainant’s desk in mid-November, 2011. The
Division Head indicated that he was unaware the partition was not installed until he received
the alleged breach claim in December, 2011, at which time he immediately ensured that the
partition was installed. Complainant also claims that the Agency breached the settlement
agreement since the partition was not a new one rather it was dirty. The Division Head
acknowledged that the partition was not new but it was in acceptable condition which was the
same condition as all other partitions in Complainant’s work area. We find that if
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Complainant expected to have a new partition, she should have made sure that it was expressly
included in the settlement agreement in order to bind the Agency under the terms thereof. We
do not find that compliance beyond the 30-day time limit for provision 2.b. in the instant
circumstances constituted a breach. We find no bad faith by the Agency and once reminded of
its obligation, the Agency promptly complied with the partition requirement. Based on the
foregoing, we find that the Agency has substantially complied with provision 2.b. of the
agreement.

If Complainant believes that she has been discriminatorily harassed subsequent to the
settlement agreement and she wishes to pursue a claim for such matters, then she should
contact an EEO Counselor pursuant to 29 C.F.R. §1614.105. The Commission does not
address in this decision whether such a claim would be timely.

CONCLUSION

Accordingly, the Agency’s decision finding no settlement breach 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
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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

March 7, 2013
Date