0120130162
03-28-2013
Margaret Price-Davis, Complainant, v. Tom J. Vilsack, Secretary, Department of Agriculture, Agency.
Margaret Price-Davis,
Complainant,
v.
Tom J. Vilsack,
Secretary,
Department of Agriculture,
Agency.
Appeal No. 0120130162
Agency No. CRSD-2011-00336
DECISION
Complainant filed a timely appeal with this Commission from a final decision (FAD) by the Agency dated September 13, 2012, 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
At the time of events giving rise to this complaint, Complainant worked as a Supervisory IT Specialist at the Agency's Washington, DC facility in Washington, DC.
On October 12, 2011, Complainant and the Agency entered into a settlement agreement to resolve the above-referenced EEO complaint.
The settlement agreement provided, in pertinent part, that the Agency agreed:
(A1) To change Complainant's Fiscal Year (FY) 2010 performance rating to "outstanding", rescind and expunge the written narrative associated with the performance rating, and provide documentation of this action to complainant within thirty (30) days after the effective date of this agreement; and
(A2) To expunge from Complainant's Official Personnel File (OPF) any and all negative comments or actions that may have been placed in the OPF during FY 2010, and provide documentation of this action to Complainant within 30 days.
(C5) The parties agreed that "compliance issues shall be governed by the applicable EEO regulation, 29 C.F.R. 1614.404;" and
(C6) The parties agree that they are entering into this agreement voluntarily "and that they fully understand the terms of this Agreement."
By a January 27, 2012 letter to the Agency, Complainant advised the Agency that she believed that the Agency breached the settlement agreement, and requested that the Agency specifically implement its terms. Specifically, Complainant alleged that she had not been provided a new rating showing the change to "Outstanding" and the Agency had not certified that it had in fact rescinded and expunged the negative comments from the FY 2010 record. Complainant also alleged that the Agency failed to comply with the time requirements, because the Agency had not provided any of the relief specified in the agreement as of the date on which Complainant advised the Agency of her claim of non-compliance.
In its FAD, the Agency concluded that it had complied with the terms of the Agreement, although the Agency conceded that the Agency did not act within the time frame specified for performance.
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).
We find that that the pertinent provisions were knowingly and voluntarily entered by the parties and that the Agreement is valid.
On appeal, Complainant requests that the Agency be found in non-compliance and ordered to comply with the terms. She argues that the Agency has not complied with the requirement to issue Complainant an Outstanding rating for FY 10. She further argues that the Agency failed to abide because it took the Agency 100 days to provide the relief that was supposed to be accomplished in 30 days. The Agency argues that a mere delay in compliance is not enough to show breach and that Complainant did not suffer any material disadvantage when the implementation was delayed. Complainant counters that the 100 days is not reasonable and the Agency still has not provided her with a changed performance rating of "Outstanding". She seeks specific performance and reimbursement for the costs of her attorney fees.
Provision 1A - Outstanding Rating
In the instant case, we find that the record shows that the Agency failed to provide evidence that it complied with the requirement to change Complainant's rating to an "Outstanding". While the agreement did not state that the Agency must issue a new rating, it does state that her rating will be changed and that Complainant will be provided with notification of the completion of the changed rating. The record before us does not show that this happened. Instead, the record shows that the Agency made electronic entries, but it does not show that Complainant actually received a changed rating.
Further, the Agreement was clear that the change must be completed by a date certain. In light of the fact that it is undisputed that the Agency failed to take any of the steps within 30 days, we find that the Agency is in breach for that reason, as well.
Provision A2 - Expunge Negative Comments and Provide Documentation
We find that the Agency breached the Agreement provision A2 that required the Agency to expunge all negative comments and notify Complainant. The Agency should certify that all previous 2010 rating forms have been rescinded and expunged. The failure to carry out this provision is evidenced by the record that documents that the Agency did not provide notification until after Complainant filed her claim of non-compliance.
Further, the Agreement at provision C6 plainly states:
Both parties also agree that they fully understand the terms of this Agreement.
Accordingly, the settlement agreement binds the Agency to carry out the terms of the Agreement, within the time frame provided and to provide notice to the Complainant. We are troubled by the Agency's apparent reluctance to remedy this, inasmuch as the Agency did not respond to Complainant's concern that she had not been given the corrected FY 2010 rating form. Plus, it took the agency three times the amount of time specified in the Agreement to comply with any of the terms of the Agreement. Instead, it put the onus on Complainant to have to fight for compliance and reimbursement of her costs. We agree with Complainant, therefore, that the Agency's inaction, delaying performance and its failure to provide a changed rating, breached the plain language of the Agreement.
Where this Commission finds that a settlement agreement has been breached, pursuant to 29 C.F.R. � 1614.504(c), the only two remedies available are specific performance of the terms of the agreement or reinstatement of the underlying EEO complaint at the point processing ceased. In this case, we find that specific performance of the settlement agreement is appropriate.
We order the Agency to provide Complainant with a revised FY 2010 Performance Rating, showing the Outstanding rating and proof of compliance. Because the Agency's delay caused Complainant to pursue an appeal, we find that she has shown harm and an entitlement to her costs.
Consequently, and consistent with the requirements of the regulations, we permit Complainant reimbursement for the costs associated with getting compliance.
Accordingly, we REVERSE the Agency's decision finding no breach. We REMAND this matter to the Agency for compliance with the Order set forth below.
ORDER
The Agency is ORDERED to take the following actions:
1. Within thirty (30) calendar days from the date this decision becomes final, the Agency is ordered to change Complainant's FY 2010 performance rating to "Outstanding" and provided documentation of this action to Complainant, along with the effective date of the FY 2010 rating;
2. Provide proof that the Agency expunged any and all negative comments or actions placed in Complainant's OPF file during FY 2010 (or pertaining to the FY 2010 period) and provide documentation of compliance to Complainant;
3. Reimburse Complainant, with interest, for any and all payments that were taken by, or for, the Agency as a result of the delay in compliance
4. The Agency is directed to reimburse Complainant for any costs associated with seeking compliance, including her reasonable attorney's fees, with interests.
The Agency is further directed to submit a report of compliance, as provided in the statement entitled "Implementation of the Commission's Decision." The report shall include supporting documentation verifying that the corrective action has been implemented.
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.
ATTORNEY'S FEES
If Complainant has been represented by an attorney, she is entitled to an award of reasonable attorney's fees incurred in the processing of this non-compliance action and appeal. The award of attorney's fees shall be paid by the agency. The attorney shall submit a verified statement of fees to the Agency - - not to the Commission, Office of Federal Operation - within thirty (30) calendar days of this decision becoming final. The Agency shall then process the claim for attorney's fees in accordance with applicable Commission regulations.
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 tends 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 (R0610)
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 (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 28, 2013
__________________
Date
2
0120130162
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120130162