0120111040
05-25-2012
Anita B. Dungan, Complainant, v. Tom J. Vilsack, Secretary, Department of Agriculture (Forest Service), Agency.
Anita B. Dungan,
Complainant,
v.
Tom J. Vilsack,
Secretary,
Department of Agriculture
(Forest Service),
Agency.
Appeal No. 0120111040
Agency No. FS-2009-00320
DECISION
Complainant filed a timely appeal with this Commission alleging that the Agency breached the terms of a November 23, 2010 settlement agreement. See 29 C.F.R. � 1614.402; 29 C.F.R. � 1614.504(b); and 29 C.F.R. � 1614.405.
BACKGROUND
On April 21, 2010, Complainant and the Agency entered into a settlement agreement. The settlement agreement provided, in pertinent part:
(1) [The Agency will] remove and expunge Complainant's Letter of Warning received on January 13, 2009. Within sixty (60) days of the effective date of the agreement, [an Agency official] will provide a letter of confirmation to Complainant affirming that the Letter of Warning has been rescinded and expunged from her personal records.
(2) [The Director will] attend forty (40) hours of Supervisory/HR/Civil Rights/EEO training, with a minimum of twenty-four (24) hours to be exclusively Civil Rights/EEO training, to be completed within ninety (90) days of the execution of this agreement. Within ninety (90) days of the effective date of the agreement, [an Agency official] will provide a letter of confirmation to Complainant affirming [the Director] attended such training.
By letter to the Agency dated July 13, 2010, Complainant alleged that the Agency breached the settlement agreement1 and requested that the Agency reinstate her underlying EEO complaint. Specifically, Complainant alleged that the Agency failed to comply with provision 1 because the Agency had not sent her a letter by June 20, 2010, that confirmed that the Letter of Warning was removed. Complainant further stated that, although the Agency had until July 20, 2010, to send her a letter confirming that the Director had received 40 hours of training, she had not yet received such a letter. On October 6, 2010, Complainant reasserted the claims contained in her July 13, 2010, letter. When the Agency did not respond to Complainant's breach claims within 35 days after receiving her allegations of non-compliance, Complainant appealed the matter to the Commission, in accordance with 29 C.F.R. � 1614.505(b).
CONTENTIONS ON APPEAL
On appeal, Complainant submits copies of the letters in which he notified the Agency of her breach claim but does not present any argument. The Agency maintains that it substantially complied with the terms of the settlement agreement when it issued one letter on January 7, 2011, to Complainant confirming that the Director attended at least 40 hours of training, and a second letter to Complainant confirming that the Letter of Warning was expunged.
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 (Dec. 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 (Aug. 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 (Dec. 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 agreed to issue a letter to Complainant confirming that it expunged a Letter of Warning within 60 days of the execution of the agreement. The Agency also agreed to issue a letter to Complainant confirming that the Director received 40 hours of training within 90 days of the execution of the settlement agreement.
The record reflects that in a second letter also dated January 7, 2011, the Agency informed Complainant that the Director had received at least 40 hours of Supervisory/Human Resources/Civil Rights/EEO training, including at least 24 hours of Civil Rights and EEO training. The letter specified the type of training the Director received and dates on which he attended the courses. The record further reflects that in a letter dated January 7, 2011, the Agency informed Complainant that an Employee/Labor Relations Assistant confirmed that her Letter of Warning was rescinded and expunged from her personal records in Spring 2010, and no copies of the Letter of Warning were entered into her electronic personnel file or any other electronic database.
The Agency complied with provision 1 over six months late and with provision 2 over five months late. We note that failure to satisfy a time-frame specified in a settlement agreement does not prevent a finding of substantial compliance, especially when all required actions were subsequently completed, and the complainant has not shown that he or she was harmed by the delay. Lazarte v. Dep't of the Interior, EEOC Appeal No. 01954274 (Apr. 25, 1996). In this matter, we find that the Agency substantially complied with the terms of the agreement. See Onyenekwe v. Dep't of Veterans Affairs, EEOC Appeal No. 0120101929 (substantial compliance where the Agency was approximately one year late in removing documents from Complainant's personnel folder as promised) (Aug. 6, 2010). Consequently, the Commission finds that the Agency did not breach the agreement.
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 (S0610)
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 (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
May 25, 2012
Date
1 The settlement agreement also provided that the Agency would remove the Director from Complainant's chain of command, and would pay Complainant $5,000. There is no dispute that the Agency complied with those provisions of the settlement agreement.
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0120111040
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120111040