0120123420
02-14-2013
Barbara A. Zobairi, Complainant, v. Michael B. Donley, Secretary, Department of the Air Force, Agency.
Barbara A. Zobairi,
Complainant,
v.
Michael B. Donley,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 0120123420
Agency No. 09021-3064
DECISION
Complainant filed a timely appeal with this Commission from a final decision (FAD) by the Agency dated July 27, 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 Human Resources Specialist at the Agency's facility in. Believing that the Agency subjected her to unlawful discrimination, Complainant contacted an Agency EEO Counselor to initiate the EEO complaint process. On October 20, 2011, Complainant and the Agency entered into a settlement agreement to resolve the matter. The settlement agreement provided, in pertinent part, that:
(3) (a) The Second Line Supervisor (SL Supervisor) agrees to hold a meeting with the Chief, Ramstein Air Base Civilian Personnel Office, within 14 days of the signing of this document to ensure a detailed, formalized, training plan for Complainant has been developed and implemented. Further, in the SL Supervisor's meeting with the Chief, he will ensure that the Chief has assessed the quality of training provided to Complainant and directed corrective actions to improve the quality and effectiveness of any training areas she and/or Complainant felt were inadequate.
(b) The SL Supervisor will ensure that the Chief meets the First Line Supervisor (FL Supervisor) within 14 days of the signing of this document to emphasize the importance of professional conduct in the associated Civilian Personnel Office work centers. The Chief will also stress to the FL Supervisor her responsibilities as a supervisor, how her actions set the standard for the workplace, and the need for all employees to practice mutual respect and appropriate professional interpersonal communication. Complainant is encouraged to bring any future incidents of unprofessional conduct to the Chief's attention. If Complainant feels that corrective actions are not being addressed properly, Complainant will have direct access to the SL Supervisor to address any work environment concerns by contacting the SL Supervisor's office to schedule an appointment.
(c) The SL Supervisor will ensure that the Chief contacts the 86 Bioenvironmental Engineering Office to coordinate having an air quality study conducted to determine available options that can be taken to minimize mold, dust and other allergens that can aggravate or exacerbate Complainant's medical condition. The SL Supervisor will ensure the Chief begins coordinating the air quality study within 14 days of the signing of this document However, when the actual air quality study will be conducted is based on the 86 Bioenvironmental Engineering office's mission requirements. If necessary, Complainant and her Co-worker's (CW1) work section will be relocated to an area with better air quality. Additionally, the Chief will emphasize the importance of maintaining a professional and clean work environment to the Civilian Personnel Office staff. The Chief will assess the cleanliness of Complainant and the co-workers office to address Complainant's concerns of an unclean office area within 14 days of the signing of this document.
(e) If after the items listed in section 3, subsections a, b, and c, have been implemented, and Complainant feels the conditions in her work environment have not improved, the SL Supervisor will help Complainant contact the appropriate approval authority and assist with routing for consideration Complainant's application to be released from her assignment at Ramstein Air Base and invoke her return rights to the US Army Corp of Engineers office in Ft. Worth, Texas, as the expense of the U.S. Air Force, or pursue any other employment opportunities. The SL Supervisor does not guarantee any specific outcome on Complainant's application for release from her assignment.
By letter to the Agency dated December 29, 2011, 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 provide for a training plan as directed under (3)(a). Under (3)(b), Complainant asserted that the SL Supervisor constantly has lunches and trips with a co-worker (CW2). So Complainant believes that management has not spoken to the SL Supervisor. Under (3)(c), Complainant stated that the 86 Bioenvironmental Engineering study found that the carpet aggravated and exacerbated her medical condition. Therefore, the carpet should be removed and tile put in its place. However, no action has taken place and she needs to be moved to an area with better air quality. As such, Complainant asserted that the Agency has not implemented provision (3)(c). Finally, Complainant asserted that the Agency was to pay for her return to the Corps of Engineers. Complainant requested a release on October 28, 2011. On December 13, 2011, she learned that her request letter had been changed and the Chief informed Complainant that she would be held accountable for items and an advancement in salary leaving her in debt by $9,566.25.
In its July 27, 2012 FAD, the Agency concluded it had complied with the settlement agreement. As to provision (3)(a), the Agency found that the FL Supervisor met with Complainant and went over a training plan with her on October 18, 2011. The SL Supervisor also indicated that he met with the Chief to ensure a detailed plan was developed and implemented for Complainant. Complainant has not followed up with the SL Supervisor. As to the FL Supervisor having lunch with CW2, the Agency noted that she asked all employees to go to lunch and Complainant chooses not to go. The FL Supervisor asserted that it is always an open invitation for all employees. Further, the Chief stated that he has met with the SL Supervisor about professional conduct. Therefore, the Agency found it did not breach provision (3)(b).
As to (3)(c), the Agency noted that the Bioenvironmental study was conducted however, there was no recommendation to remove the carpet. The SL Supervisor's response was to keep the office clean, windows open/closed as necessary and to keep smokers away. In addition, the SL Supervisor stated that Complainant has never followed up with him on the carpet concern. As such, the Agency found that it was in compliance with provision (3)(c).
Finally, as to provision (3)(e), the FL Supervisor stated that she did not change Complainant's request letter and that the only changes the FL Supervisor made were by adding the enforcements/signature blocks as required for routing the request. The SL Supervisor was informed by Complainant regarding the costs associated with the transfer. In December 2011, the SL Supervisor stated that the Chief followed up with Complainant and noted that Complainant's advance pay and utilities were a personal financial obligation she owes the government and she is still responsible for paying back to the government. These expenses were unrelated to her relocation costs.
This appeal followed.
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).
In the instant case, as to provision (3)(e), Complainant asserted that she should have been relieved of any indebtedness she has incurred against the Agency based on this provision for her reassignment to the Army Corps of Engineers. However, a review of the settlement agreement shows that the Agency will provide for the costs of transferring Complainant from their facility to Texas. However, there is no language that would release Complainant from her indebtedness to the Agency based on her housing, temporary housing and advances on her pay. As to provisions (3)(a) and (b), we find that the Agency provided Complainant with a training plan and that the FL Supervisor was provided with a reminder about professional interpersonal communication. Therefore, we find that the Agency has complied with the settlement agreement with provisions (3) (a), (b) and (e).
As for (3)(c), Complainant argued that the Bioenvironmental study found that the carpet needed to be replaced and the office cleaned. However, Complainant asserted that this did not happen. The record included a copy of the report which noted that the carpet was regularly cleaned and vacuumed. The study recommended that Complainant be moved to an office space without carpeting. However, the study noted that there was no workspace without carpet on the floor. As such, this would not be possible. The study suggested that Complainant notify the Agency if her condition continued. Upon review, we note that the Agency was not obligated to remove the carpet in the workspace. The study stated that Complainant should contact the Agency if the cleaning did not resolve the problem. The SL Supervisor averred that Complainant failed to follow up regarding any continued issues regarding the carpet as noted in the settlement agreement. Furthermore, the settlement agreement provided that if the Agency failed to comply with provision (3)(c), the Agency would have to process Complainant's transfer pursuant to provision (3)(e). The record clearly shows that the Agency processed Complainant's transfer as required by provision (3)(e). As such, we find that the Agency complied with the settlement agreement.1
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's determination finding no breach of the settlement 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), 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 (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
February 14, 2013
__________________
Date
1 We note that Complainant has alleged new claims of discrimination for the first time on appeal. We find that it is inappropriate to raise these new claims here on appeal and we note that Complainant wishes to pursue these issues; she should contact the Agency's EEO Office.
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0120123420
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120123420