Allenard D. Coplin, Complainant,v.Mike Leavitt, Secretary, Department of Health and Human Services, Agency.

Equal Employment Opportunity CommissionFeb 6, 2007
0120063986 (E.E.O.C. Feb. 6, 2007)

0120063986

02-06-2007

Allenard D. Coplin, Complainant, v. Mike Leavitt, Secretary, Department of Health and Human Services, Agency.


Allenard D. Coplin,

Complainant,

v.

Mike Leavitt,

Secretary,

Department of Health and Human Services,

Agency.

Appeal No. 01200639861

Agency No. FDA-OC-02-06

DECISION

Complainant filed a timely appeal with the Equal Employment Opportunity

Commission (EEOC or Commission) from a final decision (FAD) by the

agency dated June 19, 2006, finding that it was in compliance with

the terms of the February 16, 2006 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.

The settlement agreement provided, in pertinent part, that:

Office of Financial Services agrees to a desk audit to determine if the

complainant's work is appropriately graded. If the desk audit determines

that the complainant is working at a higher grade level, the complainant

will be promoted to the higher grade level effective the pay period

following the completion of the reclassification of his position due to

the outcome of the desk audit. If the desk audit determines that the

complainant's work is appropriately graded, then the complainant will

remain at the GS-11 level. This desk audit will take place within 60

days that the last signature is obtained for this agreement.

The settlement agreement closed an informal complaint by complainant.

On April 19, 2006, according to the FAD, complainant emailed the agency

alleging this term of the settlement agreement had been breached.

The record reflects this was a reference to his not receiving his

desk audit.

The FAD acknowledged the delay. It referred to an email dated May 4,

2006 from an official responsible for processing an order to do the

desk audit stating that the paperwork was inadvertently misplaced

in her office causing a delay, but she moved it forward to the Human

Resources Department. The FAD refers to another email, not in the record,

indicating that the Human Resources Department received the paperwork

and scheduled the desk audit to begin on June 8, 2006. The FAD found

that while the agency did not comply with the settlement agreement,

it scheduled the desk audit putting it in compliance.

In his June 21, 2006, appeal, complainant states that the desk audit

still had not occurred. The record contains internal agency emails from

June and July, 2006 by EEO officials and its Human Resources Department.

They indicate that the desk audit did not commence on June 8, 2006,

as scheduled because a manager was sick. A July 12, 2006 email by an

agency Employee Relation Specialist states the desk audit was cancelled.

The record suggests that the Employee Relation Specialist, in explaining

why this occurred, referred to the email of an agency Conflict Resolution

Specialist that management revoked the settlement agreement. The agency

Division Director for EEO Compliance replied that the settlement agreement

was in full force. A July 12, 2006 email by a Human Resources Specialist

responding to another EEO official's status email on the desk audit

indicated that Employee Relations stated that the desk audit should not

go forward. A July 12, 2006, email from the above agency EEO official

states that even after complainant's appeal of the FAD to the EEOC,

the desk audit still had not been scheduled (meaning rescheduled).

There is no indication in the record regarding whether the desk audit

has been rescheduled.

An internal email from an agency EEO official stated complainant found

a new job and was leaving the agency. It is not clear whether this

is accurate.

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 O 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).

In the instant case, the agency promised to do a desk audit by April

17, 2006. As of July 12, 2006, the agency still had not started the

desk audit, and there is no indication in the record that it has ever

started one. Given this, we find that the agency has breached the

settlement agreement.

Where a settlement agreement has been breached, a complainant may

request that its terms be specifically implemented or, alternatively,

that the complaint be reinstated for further processing from the point

processing ceased. 29 C.F.R. � 1614.504(a). On appeal, complainant

asks that the agency enforce the settlement agreement.

Given that the record still does not indicate that the desk audit has been

completed, and that complainant may have left the agency, complainant

should have the option of asking that the agency specifically enforce

the settlement agreement or, alternatively, that his informal complaint

be reinstated for processing from the point processing ceased.2

ORDER

The agency is ordered to take the following remedial actions:

1. Within 30 calendar days after this decision becomes final give

complainant the option in writing of requesting that the desk audit be

completed or having his informal complaint reinstated for processing

from the point processing ceased.

2. If complainant requests the desk audit, it shall be completed within

60 calendar days after this decision becomes final. If this process

results in the position being upgraded, the upgrade will be retroactive

to the date the upgrade would have occurred had the agency complied

with the settlement agreement, with consequent back pay with interest

and associated benefits.

3. If complainant requests that his informal complaint be reinstated,

the agency shall send a letter to complainant acknowledging this and

resume processing of his informal complaint within 30 calendar days

after complainant's request.

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, including

the option letter to complainant, verifying that the corrective action

has been implemented.

IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)

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)

(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 (M0701)

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:

______________________________

Carlton M. Hadden, Director

Office of Federal Operations

February 6, 2007

__________________

Date

1 The Commission's June 27, 2006, letters to the parties acknowledging

the appeal identified it as docket number 01A63986. Due to changes in

our computerized records tracking system, the appeal docket number has

been restyled to 0120063986.

2 Complainant is advised that if he has left the agency or no longer

works in the job agreed to be audited, it may be impractical to complete

a desk audit. Desk audits normally require interviewing the incumbent

and management over the position being audited to gain a detailed

understanding of the tasks and responsibilities of a job.

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0120063986

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P. O. Box 19848

Washington, D.C. 20036

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0120063986