0120120779
04-13-2012
Debra L. Forbes-Gray, Complainant, v. Hillary Rodham Clinton, Secretary, Department of State, Agency.
Debra L. Forbes-Gray,
Complainant,
v.
Hillary Rodham Clinton,
Secretary,
Department of State,
Agency.
Appeal No. 0120120779
Agency No. DOS-I-0034-08
DECISION
Complainant filed an appeal with this Commission asserting that the Agency
has not complied with the terms of the settlement agreement into which the
parties entered. The Agency did not issue a final decision (FAD). The
Commission accepts the appeal pursuant to 29 C.F.R. §§ 1614.402;
1614.504(b); and 1614.405. For the following reasons, the Commission
finds that the Agency BREACHED the terms of the settlement agreement
and we REMAND the matter for action consistent with the Order below.
BACKGROUND
At the time of events giving rise to this appeal, Complainant worked as
an IT Specialist at the Agency’s Office of Medical Services, Department
of State Annex SA-1, in Washington, DC.
On June 9, 2008, Complainant and the Agency entered into a Settlement
Agreement to resolve an EEO hostile work environment claim that
Complainant brought against her former supervisor, who was identified in
the Agreement as the Responding Official. The Responding Official was
a signatory to the Settlement Agreement (Agreement). At paragraph ten,
the Agreement provided, in pertinent part, that:
(1) Aggrieved will change supervisors;
(2) Aggrieved will no longer work in the Clinical Services Section
[where the Responding Official was located]; and
(3) Her new supervisor [will] facilitate and support [Complainant’s]
new work commitments.
On October 10, 2010, the Agency promoted the Responding Official
(Complainant’s former supervisor) to the position of Chief of Medical
Informatics, the group to which Complainant had been reassigned to
work. The Responding Official became the supervisor of Complainant’s
supervisor and Complainant’s reviewing official. The new position gave
the Responding Official significant direct authority over Complainant’s
job performance, evaluation and working conditions.
Complainant asserts that as soon as the Responding Official was given
authority over Complainant, the former supervisor began to challenge
Complainant. Complainant states that the Responding Official terminated,
or threatened, Complainant’s duties that were associated with records
management and internal audits, which were the areas in which Complainant
excelled.
On October 18, 2010, the Responding Official directed Complainant to meet
with her, one-on-one, in the Responding Official’s office on October 20,
2010. The stated purpose of the meeting was to review Complainant’s
job description, all special projects and ad hoc responsibilities,
her work hours, scheduled leave and scheduled training. Complainant
raised objections with the Deputy Executive Director, who advised
Complainant that she should attend the meeting. Complainant attended.
The Responding Official spent her time discussing the Settlement
Agreement. The Responding Official told Complainant that she was not
bound by the Agreement because the Agreement no longer applied and that
she believed that Complainant violated the Agreement.
On October 25, 2010, Complainant notified the Agency’s Office of Civil
Rights that she believed that the new supervisory hierarchy violated the
terms of the Agreement. Complainant also talked with the Office of Civil
Rights Attorney-Advisor. The record includes an email communication
in which the Attorney-Advisor proposed to management that someone else
should replace the Responding Official as Complainant’s reviewer.
By letter to the Agency dated November 9, 2010, Complainant formally
notified the Agency that she believed that the Agency was in breach of
the Agreement, and requested that the Agency specifically implement its
terms. Specifically, she noted that the terms of the Agreement provided
that she would not be under the supervision of the Responding Official,
who was the subject of the Settlement Agreement. Complainant followed
up informally several times during 2011. The record includes an email,
dated June 14, 2011, to Complainant that states that the Responding
Official would remain as Complainant’s reviewing official.
On November 18, 2011, the Agency’s Attorney-Adviser sent Complainant
a letter, which advised Complainant that the Agency was responding to
Complainant’s recent phone call in which Complainant alleged that the
Agency breached the Agreement and the Agency would conduct an inquiry.
In addition, the letter advised Complainant that she could appeal to the
Commission if Complainant was not satisfied with Agency’s attempt to
resolve the matter.
The Agency did not issue a Final Agency Decision, as of November 26,
2011, when Complainant filed this appeal.1
On appeal, Complainant asserts that the Agency breached the Agreement
by granting the former official who was the subject of the Agreement
supervisory authority over Complainant. She asserts that the plain intent
of the Agreement was to remove Complainant from under the supervision of
the Responding Official. She maintains that the Agency’s reappointing
the Responding Official over Complainant was incompatible with 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 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, we find that the Agreement was voluntarily and
knowingly entered and is valid. The record shows the plain intent behind
the Agreement was to ensure that Complainant, as the aggrieved individual,
would not be under the supervisory authority of the Responding Official.
The Agency has offered no explanation for its disregard of the terms
of the Agreement. Consequently, the Commission finds that the Agency
breached the terms of the Agreement, and we order that the Agency
designate someone other than the Responding Official to exercise
supervisory authority (rating or reviewing).
CONCLUSION
Accordingly, we find that the Agency BREACHED the terms of the Settlement
Agreement; and we REMAND the entire matter to the Agency for compliance
with the Order below.
ORDER
Within thirty (30) calendar days of receipt of this decision, the
Agency is ordered to remove the Responding Official from Complainant’s
supervisory chain, and continue to abide by the terms of the settlement
agreement at issue. Proof of compliance with this Order shall be
submitted to the Compliance Officer referenced 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 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
April 13, 2012
__________________
Date
1 On March 12, 2012, months after this appeal had been filed, the Agency
issued its final decision determining no breach of the agreement had
occurred when the Responding Official became Complainant’s second-level
reviewing official.
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0120120779
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120120779