Complainant,v.Sally Jewell, Secretary, Department of the Interior (Fish and Wildlife Service), Agency.

Equal Employment Opportunity CommissionJul 22, 2014
0120140001 (E.E.O.C. Jul. 22, 2014)

0120140001

07-22-2014

Complainant, v. Sally Jewell, Secretary, Department of the Interior (Fish and Wildlife Service), Agency.


Complainant,

v.

Sally Jewell,

Secretary,

Department of the Interior

(Fish and Wildlife Service),

Agency.

Appeal No. 0120140001

Agency No. DOI-FWS-12-0267

DECISION

Complainant filed a timely appeal with this Commission from a final decision (FAD) by the Agency dated August 13, 2013, 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 at the Agency's Division of Budget, Planning and Financial Services facility in Atlanta, Georgia.

On March 20, 2012, Complainant filed an EEO claim, alleging the Agency bypassed her and "promoted a lesser qualified white female to a higher rate." On May 24, 2012, Complainant and the Agency entered into a settlement agreement to resolve the EEO dispute.

The settlement agreement provided, in pertinent part, that:

(3b) No later than June 30, 2012, management will meet with [Complainant] to outline the duties, responsibilities and expectations of the Lead Management Analyst. Within seven (7) days of the date that this meeting is held, [named management officials] along with other staff, as appropriate, will meet to clarify the Lead Management Analyst role.

(3c) The [Complainant's] immediate supervisor will conduct [a] weekly meeting with [Complainant] beginning the week of May 28, 2012, through September 30, 2012. The weekly meeting may be extended beyond the end date, if mutually agreed upon by both parties.

(3d) Management will meet with [Complainant] to develop an Individual Development Plan (IDP) within thirty (30) days of the effective date of this Agreement. IDP will include at least forty (40) hours of professional development training within the next twelve (12) months.

By letter to the Agency dated November 6, 2012, Complainant alleged that the Agency was in breach of the settlement agreement, Specifically, Complainant alleged that the Agency failed to comply with paragraphs 3b, 3c, and 3d. In addition, Complainant alleged that the the Agreement reflected the parties' intent to appoint her to the Lead Management Analyst position, but her supervisor has refused to recognize her as such.

In its August 13, 2013 FAD, the Agency concluded that the record was inadequate to determine whether it complied with the identified provisions in the Agreement. The Agency stated that terms 3b, 3c and 3d "remain in dispute and we cannot make a determination whether the Agency is in breach of the Agreement regarding these terms." It stated, "in reviewing the record, it is evident that the facts relating to who was at attendance at these meetings, any purported discussion of outlining the duties, responsibilities and expectations of the Lead Management Analyst are in dispute." The Agency added, "there are no statement from management from the employees listed verifying that the employee(s) in question in fact attended the meetings." In addition, the IDP was not completed until August 9, 2012, which was more than thirty days after the signing of the agreement or the required date of execution.

The Agency then stated that concluded it was "necessary to reinstate the complaint for processing from the point processing ceased." The Agency noted that the Agreement resulted from an Alternate Dispute Resolution process and contends "the claims were not formally alleged." The Agency decision stated that it would "assign an EEO Counselor to the Complainant for immediate counseling regarding these claims and the retaliation claim."

This appeal followed. In her statement of appeal, Complainant requests the rescission of the Agency's decision that ordered the reinstatement of her original complaint. Instead, she requests that the Agency specifically implement the terms of the Agreement.

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, which 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, we find that the Agency has not met its burden of showing that it complied with the terms of the Agreement. The Agency concedes that it lacks evidence of its compliance. Specifically, the Agency provided no evidence that it complied with the Agreement's requirements that management meet with AP by June 30, 2013 to outline the duties, responsibilities and expectations of the Lead Management Analyst. The named management officials did not meet to clarify the Lead Management Analyst role. We note that Complainant's supervisor refused to abide by the terms of the Agreement, often stating that he did not have to abide because he was not one of the signatories. Her immediate supervisor failed to conduct weekly meetings with AP beginning the week of May 28, 2012. Management did not meet with AP to develop an Individual Development Plan (IDP) within thirty (30) days of the effective date of this Agreement. The record shows that Complainant's position description was not officially changed until 18 months after the entry of the Agreement.

For these reasons, we find that the record supports Complainant's assertion that the Agency breached the settlement agreement and did not carry out its obligation under the Agreement in good faith. The Agency has already indicated that it believes Complainant's underlying EEO complaint should be reinstated as a result of its inability to prove compliance with the Agreement. Complainant, however, requests specific performance with the Agreement.

Once critical issue that must be resolved is whether or not Complainant's placement in the position of Lead Management Analyst was part of the Agreement. The Agency argues on appeal that there is nothing in the plain language of the Agreement that provides for such a placement. Complainant, on the other hand, asserts that this was the clear understanding of the parties during the mediation that resulted in the Agreement. As already noted, the Commission usually relies only on the plain language contained in the four corners of an agreement to determine its meaning. However, in this case, the Agency concedes that the agreement is ambiguous about whether or not Complainant would become the Lead Management Analyst. Therefore, this is a case where we must rely on extrinsic evidence beyond the Agreement to determine the intent of the parties. In doing so, we note that the Commission has held that ambiguities in the language used in a settlement agreement will be held against the drafter, which in this case was the Agency (or its mediator). See Villianueva v. United States Postal Service, EEOC Request No. 05910165 (March 28, 1991).

The language of paragraph 3b of the Agreement provides that management was required to meet with Complainant to outline the "duties, responsibilities and expectations" of the Lead Management Analyst position. The record shows that management did not approve a position description changing Complainant's title to Lead Management Analyst until December 2013, over a year and a half after the Agreement was executed. However, the record contains a form approving a monetary award for Complainant (in compliance with another term of the Agreement), signed by her first and second line supervisors, on which Complainant's title is indicated as "Lead Mgmt & Program Analyst." We find this is sufficient evidence to support Complainant's contention that parties, in executing the Agreement, intended for Complainant to be placed in the Lead Management Analyst position and that was why provision 3b required management to explain the duties, responsibilities and expectations of the position to her.

Despite the agreement by the parties that Complainant would be placed in the Lead Management Analyst position, by the year-end performance meeting on October 11, 2012, seven months after executing the Agreement, Complainant's Employee Performance Appraisal Plan (EPAP) for 2011-2012 still did not identify her as a Lead Management Analyst. A proposed position description, signed on June 7, 2013, lists Complainant's title as Lead Management Analyst for Payment and Requisitions, but she was not formally placed in the position until the Position Description was officially classified on December 4, 2013. Therefore, we also find the Agency failed to comply in good faith with the agreement to place Complainant in the Lead Management Analyst position.

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. Complainant appears to be seeking specific performance because the Agreement obligated the Agency to provide her with the title of Lead Management Analyst, weekly meetings, training and an IDP associated with her appointment to the Lead Management Analyst position. To the extent, that the Agency has not already complied with each of the terms of the Agreement, we find that justice would be best served by ordering specific performance.

Finally, we note that, on appeal, Complainant claims, that because of her race and prior EEO complaints against him, her immediate supervisor continues to exhibit hostility and treat Complainant with less respect and support than what he provides to Caucasian employees. These race-based and retaliatory actions are new allegations not addressed by the subject Agreement. Complainant is advised that if she wishes to pursue, through the EEO process, the additional reprisal claims she raised for the first time on appeal, she should initiate contact with an EEO Counselor within 15 days after she receives this decision.

CONCLUSION

Based on our review of the record and the statements and contentions on appeal, we find that the Agency breached the Agreement. Accordingly, we REVERSE the Agency's final decision and REMAND the matter for action in accordance with the ORDER below.

ORDER

Within thirty (30) days of the date this decision becomes final, the Agency is ordered to:

1. Provide specific performance of provisions 3b, 3c and 3d of the Agreement. Among other things, this means that the Agency shall retroactively place Complainant in the position of Lead Management Analyst effective June 30, 2012, and compensate her for any additional pay or benefits such retroactive placement may require.

2. The Agency shall notify Complainant and the Commission of the date and manner in which the Agency has fully implemented the terms of the Agreement.

3. Pay any legal costs that may be associated with Complainant's efforts to obtain full compliance, including any reasonable attorney's fees that are due. Complainant's attorney shall submit a verified statement of fees to the Agency -- not to the Equal Employment Opportunity Commission, Office of Federal Operations -- within thirty (30) calendar days of this decision becoming final. The Agency shall then process the claim for attorney's fees in accordance with 29 C.F.R. � 1614.501.

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 tends 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

July 22, 2014

__________________

Date

2

0120140001

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

2

0120140001