0120140967
05-16-2014
Complainant, v. Anthony Foxx, Secretary, Department of Transportation, Agency.
Complainant,
v.
Anthony Foxx,
Secretary,
Department of Transportation,
Agency.
Appeal No. 0120140967
Agency No. 2008-22034-FTA-05
DISMISS
Complainant filed a timely appeal with this Commission regarding her request to withdraw a breach claim regarding a December 9, 2008 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 December 9, 2008, Complainant and the Agency entered into a settlement agreement to resolved a matter pursued in the EEO complaint process. The settlement agreement provided, in pertinent part, that:
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2.b. Change her first-line supervisor from [supervisor] to [supervisor].
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2.e. [Agency representative] specifically, will notify [Complainant] if anyone reports to him that she is sleeping on the job and will bring her into and include her in such discussion.
By letter to the Agency dated November 4, 2013, Complainant alleged that the Agency breached provisions 2.b. and 2.e. of the settlement agreement. Complainant alleged further that she was subjected to harassment and a hostile work environment.1
In its December 2, 2013 final decision, the Agency determined that upon receipt of Complainant's email correspondence dated November 16, 2013, indicating that she had decided to withdraw her breach allegations, the subject breach allegations were administratively closed.
Complainant, on appeal, argued that the Agency improperly determined that she withdrew her breach allegations. Specifically, Complainant stated that during the week of November 4, 2013, she learned that her supervisor would be returning and that a named female supervisor would be her new supervisor. Complainant believed that these actions "to be a violation of the Settlement Agreement. [Current supervisor] was still her supervisor until the day he retired, unless [Complainant] and [current supervisor] agreed on a replacement before he retired. Further, the language of the Settlement Agreement required the re-opening of negotiations for [Complainant's] replacement. Finally [Complainant has a current EEO charge involving [Agency official's] questionable selection for the position he now holds. Based on Settlement Agreement, Section 11 and 29 CFC Part 1614.504, [Complainant] filed a breach complaint...[Complainant] also filed an informal EEO complaint regarding the breach."
Further, Complainant stated that on November 15, 2013, she contacted the EEO Specialist "about the breach. [Complainant] wanted to find out what was needed by [EEO Specialist's] office regarding the breach allegations...[Complainant] also wanted to find out how to proceed with meeting the Office of the Secretary of Transportation...[Complainant] also indicated during the discussion that an EEO Informal Complaint had been initiated to file a claim based on the breach of the Agreement. [EEO Specialist's] response was that there was no need to file any report with DOCR; but instead, to work with the Agency to come to a negotiated agreement and/or to amend the Settlement Agreement within specified 35 days noted in the response notice."
Complainant stated as the discussion continued, the EEO Specialist told her that a "'new' charge (her words) was not the procedure to file a breach charge, because in filing a breach charge the existing charges of the Settlement Agreement would be the basis for the charge. Based on what [EEO Specialist] told [Complainant], [Complainant] withdrew the informal charge." Furthermore, Complainant stated that she only requested that the EEO counseling part in her EEO complaint number 2014-25356-FTA be withdrawn but that her breach allegation be continued.
Finally, Complainant states that the Agency "took the language of [Complainant's] withdrawal and used it to its advantage by overreaching her intent while fulfilling its desire to have the breach complaint disappear. Based on the clear intent of [Complainant], she respectfully requests that the breach claim be re-opened."
The record contains a copy of Complainant's attorney's email correspondence dated November 16, 2013 to the Director, Office of Civil Rights. Therein, Complainant's attorney stated that he and Complainant "filed a claim regarding issues involving the breach of an active Settlement Agreement. The assigned EEO Counselor was [EEO Counselor]. However, at this time, we wish to withdraw the charge and cancel all EEO discussions. If possible, we respectfully request that any shared electronic document files be destroyed. If this is not possible, we request that those files be kept in strictest confidence."
The record also contains a copy of the EEO Specialist's email correspondence dated December 12, 2013 to Complainant's attorney. Therein, the EEO Specialist stated that on November 15, 2013, Complainant contacted her by phone "stating that she had just called her attorney regarding the breach that the Agency is working to resolve. As she discussed her breach allegations, she referred to it as a 'new' complaint. I informed her that she was not filing a 'new' complaint, she has filed a breach allegation. I asked her since she stated a 'new' complaint, whether she had additional complaint activity. She stated that she has another complaint which is currently at the hearing stage. She further stated that the FTA does not care about what is going on. The supervisor who the FTA wants to substitute is the supervisor named in the complaint at the hearing stage. Her attorney told her to call me to find out what she should do. I told her she needs to consult with her attorney and they need to work with the FTA Attorney...to determine whether they can reach resolution to amend the settlement. If not, S-342 will issue a decision. She will have the right to appeal the decision."
Further, the EEO Specialist noted that by email dated November 16, 2013 to the Director, Office of Civil Rights, Complainant requested that her breach allegation be withdrawn. The EEO Specialist stated that on December 2, 2013, the Agency sent a letter to Complainant notifying her that they were in receipt of her November 16, 2013 email "requesting to withdraw the breach allegation. Therefore, the breach allegations were administratively closed. Based on the above-referenced information, a new EEO claim was never raised by [Complainant's attorney] or [Complainant] with our office."
The instant appeal followed.
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).
Upon review of the record, the Commission dismisses the instant appeal. Complainant withdrew her breach allegations because she claimed there was confusion about alleging breach of the instant agreement and filing a separate EEO complaint. However, we note that the record contains a copy of Complainant's attorney's email correspondence dated November 16, 2013 to the Director, Office of Civil Rights. Therein, Complainant's attorney stated that he and Complainant "filed a claim regarding issues involving the breach of an active Settlement Agreement. The assigned EEO Counselor was [EEO Counselor]. However, at this time, we wish to withdraw the charge and cancel all EEO discussions. If possible, we respectfully request that any shared electronic document files be destroyed. If this is not possible, we request that those files be kept in strictest confidence."
Consequently, we find that Complainant validly withdrew her breach allegations, depriving the Commission of jurisdiction over the matter. The record indicates that there was no evidence reflecting that the Agency misled Complainant into withdrawing her breach allegations. Accordingly, Complainant's appeal regarding the withdrawal of the breach claim is hereby DISMISSED.
However, based on a fair reading of the record, we determine that apart from the above referenced breach claim, Complainant is also arguably attempting to pursue the EEO complaint process regarding new incidents of alleged harassment that had not been resolved in the subject settlement agreement. Accordingly, to the extent that Complainant has pursued the EEO complaint process on new claims of harassment, we REMAND this matter to the Agency for further processing in accordance with the ORDER below.
ORDER
The Agency is ORDERED to take the following action:
1. Within thirty (30) calendar days from the date that this decision becomes final, the agency shall take the following action: continue processing any new incidents of harassment, that were not resolved in the instant settlement agreement, from the point where processing ceased. The Agency shall acknowledge to Complainant that it has resumed processing the remanded claims.
The Agency shall submit a report regarding the ordered action to the Compliance Officer in accordance with the paragraph below.
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), 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 (T0610)
This decision affirms the Agency's final decision/action in part, but it also requires the Agency to continue its administrative processing of a portion of your complaint. 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 on both that portion of your complaint which the Commission has affirmed and that portion of the complaint which has been remanded for continued administrative processing. 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 your appeal with the Commission, until such time as the Agency issues its final decision on your complaint. 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 16, 2014
__________________
Date
1 In this letter, Complainant also makes reference to breach of provision 1(a), which provides no affirmative Agency obligation, but is merely a recitation of the claims that Complainant had raised in the underlying complaint (that Complainant "was subjected to a hostile work environment harassment)." We consider this reference not to relate to a substantive breach claim.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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