01a02716
02-08-2001
Karyn M. Lambert, Complainant, v. Robert M. Pirie, Jr., Acting Secretary, Department of the Navy, Agency.
Karyn M. Lambert v. Department of the Navy
01A02716
February 8, 2001
Karyn M. Lambert,
Complainant,
v.
Robert M. Pirie, Jr.,
Acting Secretary,
Department of the Navy,
Agency.
Appeal No. 01A02716
Agency No. 00-60169-001
DECISION
Complainant filed a timely appeal with this Commission from a final
decision by the agency dated March 15, 2000. The agency denied
complainant's request to reinstate her complaint finding that her claim
of breach of the terms of the March 11, 1998 settlement agreement
was untimely raised.<1> See EEOC Regulation 29 C.F.R. � 1614.402;
29 C.F.R. � 1614.504(b); and 29 C.F.R. � 1614.405.
The settlement agreement provided, in pertinent part, that:
(1) The Human Resources Office Classification Section will work with
complainant's first level supervisor and complainant in developing a
detailed position description.
(2) The EO Advisor will be consulted to develop a sensitivity training
course, ...[and] employee attendance will be mandatory.
(3) Complainant will enroll in the Avionics Core Class,...when funding
is available. If funding is not available by July 31, 1998, this issue
will be reviewed by [the top line supervisor] and complainant to decide
on a new date.
The settlement agreement also includes a provision that complainant was
to contact the agency's EEO office in writing within 30 days of the date
of any alleged violation of any of the above provisions, and request
either compliance with the terms, or reinstatement of the complaint.
In an e-mail communication to the agency EEO office dated May 21, 1998,
complainant stated that the agency failed to comply with any of the
terms of the settlement agreement, and specifically stated that funding
was available for the training referenced in provision 3, but that two
other workers had been selected to attend. In an attached e-mail message
addressed to her first line supervisor, which complainant forwarded to
the EEO specialist, complainant indicated that she was perplexed by the
selection of co-workers, because under the settlement agreement she was to
attend this training as soon as funds were available. The EEO specialist
advised complainant that the settlement agreement stated that if funding
was not available by July 31, 1998, she was to discuss it with the top
line supervisor to decide on a new date, and asked if she had done so.
The record reflects that complainant again contacted the EEO office via
e-mail on November 9, 1999, indicating that she had been hospitalized on
July 28, 1998, for psychiatric problems caused by retaliatory harassment
associated with her attempts to have the settlement agreement enforced.
Complainant requested that her complaint be reinstated on the grounds that
the agency never complied with the terms of the settlement agreement.
The record contains an e-mail from an agency official to complainant
dated December 22, 1999. Therein, the official addressed provisions 1
- 3 of the settlement agreement. Regarding provision 1, the official
stated that development of a detailed position description would be
rendered moot if complainant were reassigned; regarding provision 2, the
official stated that sensitivity training �can still be accomplished;� and
regarding provision 3, the official stated that avionics core training
�would not be beneficial to you� but indicated that complainant might
nonetheless be able to receive such training.
In its March 15, 2000 decision, the agency determined that complainant
failed to inform the EEO office about the alleged breach in a timely
manner, and found that the deadline for timely informing the agency of
settlement breach was August 30, 1998 ( thirty days after the July 31,
1998 date cited in provision 3). The agency further indicated that it
had attempted a resolution, but that complainant rejected the agency
attempts in an e-mail dated January 5, 2000.
On appeal, complainant argues that after her first documented contact with
agency officials on May 21, 1998, she was in constant contact with the
EEO office in attempting to have the agency comply with the settlement
agreement, except during her six week psychiatric hospitalization. The
Commission notes that in response to her constant inquiries, the
agency conducted an investigation of the matter, and issued a report in
November 1998.
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 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).
Regarding the timeliness of complainant's claim of settlement breach,
the Commission notes that in the May 21, 1998 e-mail, complainant
not only reported that the agency failed to initiate compliance with
provisions 1 and 2, but that it was also currently breaching provision
3 because funding was available for the training, and the supervisor
chose two other employees instead of her. Complainant asserted that
following the May 21, 1998 e-mail, she was in constant contact with the
agency's EEO office, through November 1999, in attempts to secure agency
compliance with the terms of the settlement agreement. Following these
continuous unsuccessful efforts, complainant requested that her complaint
be reinstated, as reflected in her November 9, 1999 e-mail to the agency
EEO office. Under these circumstances, the Commission determines that
complainant's breach was timely raised.
Regarding claimant's assertion that the settlement agreement was breached,
the Commission notes that a fair reading of the record reflects that while
funding was available in 1998, the agency selected two employees other
than complainant for training. Additionally, the record reflects that
complainant was never afforded any training in satisfaction in regard
to provision 3. Moreover, the Commission determines that the agency
also breached provisions 1 and 2 of the agreement. As reflected in an
agency e-mail dated December 22, 1999, a detailed position description
(identified in provision 1) was not developed, and sensitivity training
(identified in provision 2) was not established in the Air Traffic
Control Maintenance Section.
Accordingly, we REVERSE the agency's decision and REMAND this matter to
the agency for reinstatement of the complaint from the point at which
processing ceased.
ORDER
Within thirty (30) days of the date that this decision becomes final,
the agency is ORDERED to reinstate the settled matter from the point
processing ceased and to thereafter process the matter in accordance with
Part 1614 regulations. Within thirty (30) days of the date that this
decision becomes final, the agency shall notify complainant in writing
that it has reinstated the settled matter and that it will process the
settled matter in accordance with EEO regulations.
A copy of the letter notifying complainant of the reinstatement of her EEO
matter should be provided to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0900)
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)(Supp. V 1993). 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 (M0900)
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 (R0900)
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 (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:
February 8, 2001
Date Carlton M. Hadden, Director
Office of Federal Operations
1 On November 9, 1999, revised regulations governing the EEOC's
federal sector complaint process went into effect. These regulations
apply to all federal sector EEO complaints pending at any stage in
the administrative process. Consequently, the Commission will apply
the revised regulations found at 29 C.F.R. Part 1614 in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.