0120101637
08-26-2010
Sandra A. Howard, Complainant, v. John M. McHugh, Secretary, Department of the Army, Agency.
Sandra A. Howard,
Complainant,
v.
John M. McHugh,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120101637
Agency No. ARFTSAM09SEP04089
DECISION
Complainant filed a timely appeal with this Commission from a final decision (FAD) by the Agency dated February 25, 2010, finding that it was in compliance with the terms of the November 5, 2009 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.
ISSUES PRESENTED
The settlement agreement provided, in pertinent part, that:
3a [Complainant] be reassigned from her current YC-2210-02, Supervisory IT Specialist/Customer Support in AMEDDC&S to the new Desktop Support Manager/Customer Support Dept, YC-02 (series yet undetermined), located in Medical Education Training Center (METC) when the organization warrants the position; within one year from last signature of this document; and
3b [Complainant's] current position to have a position review or desk audit to be started within 60 days from last signature of this document.
BACKGROUND
By letter to the Agency dated January 19, 2010, Complainant alleged that the Agency was in breach of the settlement agreement, and requested that the Agency specifically implement its terms. Specifically, Complainant alleged that the Agency failed to conduct the desk audit of her current position in accordance with provision 3b of the November 5, 2009 agreement between the parties.
In its February 25, 2010 FAD, the Agency concluded that it was in compliance with the settlement agreement. According to the Agency, the audit of Complainant's current position was conducted on September 16, 2009. Specifically, the Agency indicates that on or about September 16, 2009, Complainant and her supervisor reviewed Complainant's position description and agreed to changes which the Agency alleges was executed along with Complainant's reassignment. The Agency states that the revisions to Complainant's position description were finalized in January 2010.
CONTENTIONS ON APPEAL
On appeal, Complainant maintains that the Agency erred in its finding that it complied with the settlement agreement between the parties entered into on November 5, 2009.
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).
In the instant case, the Commission finds that the Agency has failed to establish that it has complied with provision 3b of the November 5, 2009 settlement agreement between the parties. The record in this matter indicates that Complainant initially sought EEO counseling regarding her concerns on September 16, 2009, the day on which the Agency claims Complainant's position description was revised. The settlement agreement entered into by the parties specifically provides that the Agency would initiate a position review or desk audit within 60 days of the date of the last signature on the settlement agreement, which occurred on November 5, 2009. In its final decision, the Agency further contends that although the position review was accomplished prior to the execution of the settlement agreement, that is on September 16, 2009, it was conducted in accordance with the agreement.
The Commission finds that the Agency has breached the specific provision of the agreement relating to the revision of Complainant's position description. In applying the plain language rule as discussed above, the Commission finds that the Agency was specifically obligated in the agreement to revise Complainant's position description within 60 days of November 5, 2009. It cannot now claim that an earlier revision, accomplished prior to the execution of the settlement agreement, satisfies the plain meaning of provision 3b. If the Agency had intended for the alleged revision of Complainant's position description on September 16, 2009, to fulfill the objective of the agreement, it should have negotiated such terms into the agreement.
Based on a review of the record in this matter, the Commission finds that the Agency has failed to demonstrate its compliance with provision 3b of the November 5, 2009 settlement agreement at issue herein.
Where this Commission finds that a settlement agreement has been breached, 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 29 C.F.R. � 1614.504(c). Complainant did not specify in her notice of breach or in his statement on appeal as to which remedy she sought. We therefore give Complainant the option, in accordance with the ORDER below, of either reinstating her underlying EEO complaint, or specifically enforcing the terms of the agreement.
CONCLUSION
As such, we REVERESE the Agency's final decision regarding the settlement agreement and REMAND the matter in accordance with the ORDER below.
ORDER
The Agency is ordered to notify complainant of her option to either return to the status quo prior to the signing of the settlement agreement or to obtain specific performance of the agreement. The agency shall so notify complainant within thirty (30) calendar days of the date this decision becomes final. The agency shall also notify complainant that she has fifteen (15) calendar days from the date of his receipt of the agency's notice within which to notify the agency either that she wishes to return to the status quo prior to the signing of the agreement or that she wishes to allow the terms of the agreement to stand. Complainant shall be notified that in order to return to the status quo ante, he must return any benefits received pursuant to the agreement. The Agency shall determine its obligations due to Complainant, or return of consideration or benefits due from Complainant, within thirty (30) calendar days of the date this decision becomes final, and shall include such information in the notice to Complainant.
If Complainant elects to reinstate her EEO complaint, the Agency shall resume processing the EEO complaint from the point processing ceased pursuant to 29 C.F.R. � 1614.108 et seq. If, however, Complainant elects for specific performance, the agency shall notify complainant that the terms of the settlement agreement shall stand and the agency initiate a position review or desk audit within 60 days of the date this decision becomes final.
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.
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), 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
August 26, 2010
__________________
Date
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0120101637
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120101637