01A11016_r
05-24-2001
Mildred E. Owens, Complainant, v. Ann M. Veneman, Secretary, Department of Agriculture, Agency.
Mildred E. Owens v. Department of Agriculture
01A11016
May 24, 2001
.
Mildred E. Owens,
Complainant,
v.
Ann M. Veneman,
Secretary,
Department of Agriculture,
Agency.
Appeal No. 01A11016
Agency No. 990725
DECISION
The Commission finds that the agency's October 11, 2000 final decision
dismissing complainant's breach of settlement agreement claim was proper
pursuant to the provisions 29 C.F.R. �1614.504.
The record shows that on October 7, 1997, complainant and the agency
reached a settlement agreement. The agreement provided that the agency
would:
1. Conduct an inquiry into the issues raised in the complaint filed by
complainant (regarding whether her supervisor and co-workers have
harassed her) and take appropriate action;
2. Allow complainant to take three training courses consistent with her
position during FY98;
3. Provide career counseling to complainant in FY98;
4. Allow complainant to work on committees;
5. Restore complainant's sick leave used in relation to her EEO complaint;
and
6. Pay compensatory damages not to exceed $2,500.00.
The record shows that the agency prepared an Individual Development
Plan (IDP) for complainant for Fiscal Year 1998 - 1999. This document
contains the following statement: �unable to complete due to employee's
prolonged absence.�
By letter dated June 28, 1999, the agency informed complainant that her
excepted service appointment was being terminated effective July 6, 1999.
The agency informed complainant that because she had been on extended
leave without pay since March 11, 1998, the agency could not convert
her appointment to competitive status.
By letter dated July 9, 1999, complainant informed the agency that the
agreement had been breached because: (1) the agency failed to conduct
an appropriate inquiry forcing her to file a new complaint; (2) she was
not provided training during FY98; and (3) the agency failed to provide
career counseling to her during FY98.
The agency issued a final decision rejecting complainant's breach of
settlement claim. The agency found that after looking into complainant's
claims, it was determined that disciplinary action against her supervisor
and co-workers was not supported by the results of the inquiry.
The agency also found that complainant received career counseling
and training in accordance with her IDP in January and February 1998.
Finally, the agency found that any failure to complete the training
was the result of complainant's decision to take leave from her position
�before the middle of FY98."
On appeal, complainant contends that the agency, by failing to eliminate
her hostile work environment, made it impossible to receive the training
in question. Complainant's attorney also claims that during a deposition
in an unidentified complaint, an agency official allegedly admitted that
the hostile work environment was not eliminated.
EEOC Regulations provide 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 complainant 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. USPS, EEOC Request No. 05931097 (Apr. 29, 1994) (citing Hyon
v. USPS, 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)).
We find that the record shows that the agency substantially complied with
the terms of the settlement agreement when training and career counseling
were provided in January and February 1998. The fact that complainant
took leave without pay since March 11, 1998, one month after the agency
started to provide her with training and career counseling, persuades the
Commission that the agency substantially provided the training required by
the agreement. The proper vehicle for complainant's pursuit of a claim
regarding a continuing hostile work environment is through a separate
EEO complaint.
We also find that the agency substantially complied with the provision
of the agreement regarding inquiry into harassment by her supervisor and
co-workers. The agreement required an affirmative agency obligation to
conduct an inquiry into complainant's harassment claim. The agreement
also required the agency to take appropriate action. The agency found
that the inquiry in question was conducted and that its results did not
support taking disciplinary action. Complainant failed to show that
through these actions the agency failed to act pursuant to the terms of
the settlement agreement.
Based on the foregoing, we find that the agency's final decision
finding no breach of the settlement agreement was proper and it is
hereby AFFIRMED.
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 (S0900)
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 (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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
May 24, 2001
__________________
Date