01976344
11-24-1998
Jean S. Gray, Appellant, v. Robert E. Rubin, Secretary, Department of the Treasury, Agency.
Jean S. Gray, )
Appellant, )
)
v. ) Appeal No. 01976344
) Agency No. 96-0024B
Robert E. Rubin, )
Secretary, )
Department of the Treasury, )
Agency. )
_________________________________)
DECISION
Appellant filed the instant appeal from the agency's July 22, 1997
decision finding that the agency had not breached a settlement agreement
between the parties entered into on February 23, 1995.
The settlement agreement provided:
1. The Agency agrees to the following:
A. Management agrees to make every effort to treat the complainant with
respect and dignity; and in a professional manner.
B. Management agrees to work with the complainant in developing an
Individual Development Plan; which will include determining necessary
training needed for the complainant to carry out her duties to the
fullest extent. Management agrees to give credence to the complainant's
requests in this matter and in a fair and reasonable manner.
C. Management agrees to communicate in a timely manner (immediately, as
management is made aware) any situations (such as reclassification, or
reorganization) that will adversely impact her evaluation or her present
position, and that she will be treated fairly according to her skills,
ability, experience, and seniority.
D. Management agrees to ensure privacy when counseling or giving negative
feedback to complainant.
Appellant subsequently alleged that the agency breached provisions 1(A) -
1(D) of the agreement. In the decision the agency found that the agency
had complied with the agreement.
EEOC Regulation 29 C.F.R. �1614.504(a) provides that any settlement
agreement knowingly and voluntarily agreed to by the parties shall be
binding on both parties. If the complainant believes that the agency
has failed to comply with the terms of a settlement agreement, then the
complainant shall notify the EEO Director of the alleged noncompliance
"within 30 days of when the complainant knew or should have known of
the alleged noncompliance." 29 C.F.R. �1614.504(a). The complainant
may request that the terms of the settlement agreement be specifically
implemented or request that the complaint be reinstated for further
processing from the point processing ceased. Id.
Settlement agreements are contracts between the appellant and the agency
and it is the intent of the parties as expressed in the contract, and not
some unexpressed intention, that controls the contract's construction.
Eggleston v. Department of Veterans Affairs, EEOC Request No. 05900795
(Aug. 23, 1990); In re Chicago & E.I. Ry. Co., 94 F.2d 296 (7th
Cir. 1938). In reviewing settlement agreements to determine if there is
a breach, the Commission is often required to ascertain the intent of the
parties and will generally rely on the plain meaning rule. Wong v. United
States Postal Service, EEOC Request No. 05931097 (Apr. 29, 1994) (citing
Hyon v. United States Postal Service, EEOC Request No. 05910787 (Dec. 2,
1991)). This rule states that if the writing appears to be plain and
unambiguous on its face, then its meaning must be determined from the
four corners of the instrument without any resort to extrinsic evidence
of any nature. Id. (citing Montgomery Elevator v. Building Engineering
Service, 730 F.2d 377 (5th Cir. 1984)).
Provision 1(A)
The Commission finds that provision 1(A) of the agreement is too
vague to allow a determination as to whether the agency complied with
such a provision. Furthermore, appellant has alleged that the agency
committed subsequent acts of discrimination which violated provision
1(A). Allegations that subsequent acts of discrimination violated a
settlement agreement shall be processed as a separate complaint under
�1614.106 rather than as a breach allegation. 29 C.F.R. �1614.504(c).
The agency properly instructed appellant to seek EEO counseling on such
allegations. The Commission finds that the agency properly found that
it did not breach provision 1(A) of the settlement agreement.
Provision 1(B)
The agency found that discussions were held with appellant regarding
her training needs and that appellant only requested training for one
particular course which was offered only to managers. The record contains
a document dated September 30, 1996 detailing management's efforts to
develop an IDP for appellant. This September 30, 1996 document is not
signed, but does state that it was prepared by the Public Affairs Office,
Kansas City Service Center. The September 30, 1996 document refers to
actions taken by appellant's "manager" who is not identified by name
or title. A memorandum dated February 3, 1997 from the Chief, Quality
Assurance and Management Support Division, states that the September 30,
1996 document was written by the Chief, Quality Assurance and Management
Support Division.
On appeal appellant argues: "At no time did my manager, [Person A],
ever attempt to develop an IDP for me, nor did she discuss training
with me." Person A is not the Chief, Quality Assurance and Management
Support Division. The agency has not clearly identified any written IDP
in the record. The agency has not provided any affidavit or statement
from Person A, appellant's apparent manager, regarding whether the
agency complied with provision 1(B). The agency has not indicated that
it is unable to obtain an affidavit from appellant's manager. Appellant
contests the claim by the Chief that appellant's manager complied with
provision 1(B). Therefore, we find that (unless appellant's manager is
unavailable) an affidavit from appellant's manager is necessary to show
that the agency worked with appellant to develop an IDP. The Commission
shall remand the matter so that the agency can supplement the record with
an affidavit from appellant's manager and a copy of any IDP developed
in accordance with provision 1(B).
Provision 1(C)
Appellant is apparently claiming that management did not timely inform
her that her position was being abolished. The agency found that there
was no evidence that the agency failed to timely advise appellant of
any possible actions regarding her position. In the February 3, 1997
memorandum the Chief stated that appellant "has known for some time that
the staff would have be to be cut . . ." The Commission finds that it
is unclear from the record: (1) what date management was aware that
appellant's position would be abolished; and (2) what date appellant
was informed by management that appellant's position would be abolished.
Therefore, we shall remand the matter so that the agency can supplement
the record with evidence showing: (1) what date management was aware
that appellant's position would be abolished; and (2) what date appellant
was informed by management that appellant's position would be abolished.
Provision 1(D)
Appellant claims that management did not ensure privacy when she was given
counseling and negative feedback. Appellant claims that the office door
was left open when she received counseling and negative feedback. In the
February 3, 1997 memorandum the Chief stated: "There is one workstation
outside the office door but the former occupant always wear headphones
and told the manager that he did not hear conversations held at the door."
Appellant does not challenge the agency's assertions or claim that anyone
overheard her conversations when appellant was being counseled or given
negative feedback. Therefore, we find that appellant has failed to show
that the agency has breached provision 1(D) of the settlement agreement.
The agency's decision finding that provisions 1(B) and 1(C) of the
settlement agreement have not been breached is VACATED and we REMAND
provisions 1(B) and 1(C) of the settlement agreement to the agency for
further processing in accordance with this decision and applicable
regulations. The agency's decision finding that it did not breach
provisions 1(A) and 1(D) of the settlement agreement is AFFIRMED.
ORDER
The agency shall supplement the record with the following evidence in
order to show that the agency has complied with provisions 1(B) and 1(C)
of the settlement agreement:
1. An affidavit from appellant's manager addressing whether appellant's
manager worked with appellant in developing an IDP.
2. A copy of any IDP developed in accordance with provision 1(B) of the
settlement agreement.
3. Documents and/or affidavits showing the date management was aware
that appellant's position would be abolished.
4. Documents and/or affidavits showing the date appellant was informed
by management that appellant's position would be abolished.
Within 30 days of the date this decision becomes final the agency shall
issue a new decision determining whether the agency breached provisions
1(B) and 1(C) of the settlement agreement. A copy of the agency's new
decision must be sent to the Compliance Officer referenced herein.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0595)
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 appellant. If the agency does not comply with the Commission's
order, the appellant may petition the Commission for enforcement of
the order. 29 C.F.R. �1614.503 (a). The appellant 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. �� 1614.408, 1614.409, and 1614.503 (g). Alternatively,
the appellant 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. �� 1614.408 and 1614.409. 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) (Supp. V 1993). If the
appellant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. �1614.410.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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. �l6l4.604(c).
RIGHT TO FILE A CIVIL ACTION (T0993)
This decision affirms the agency's final decision 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 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.
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. 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 (Z1092)
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:
November 24, 1998
DATE Ronnie Blumenthal, Director
Office of Federal Operations