Ethel T. King, Complainant,v.Hansford T. Johnson, Acting Secretary, Department of the Navy, Agency.

Equal Employment Opportunity CommissionOct 15, 2003
01A31766_r (E.E.O.C. Oct. 15, 2003)

01A31766_r

10-15-2003

Ethel T. King, Complainant, v. Hansford T. Johnson, Acting Secretary, Department of the Navy, Agency.


Ethel T. King v. Department of the Navy

01A31766

October 15, 2003

.

Ethel T. King,

Complainant,

v.

Hansford T. Johnson,

Acting Secretary,

Department of the Navy,

Agency.

Appeal No. 01A31766

Agency No. DON-00-00063-001

DECISION

Complainant filed an appeal with this Commission regarding the agency's

failure to comply with the terms of the October 15, 2002 settlement

agreement into which the parties entered on the record of proceedings

before the Administrative Judge (AJ) at the time set for hearing of King

v. Department of the Navy, EEOC Hearing No. 100-A1-7278X.

The essential terms of settlement agreed upon by the parties provided,

in pertinent part, that:

(1) The [agency] would amend [complainant's] official personnel record,

probably by memo to her [Official Personnel File (OPF)], by reporting

that she was actually department head beginning December '97 until July

of 2002.

(2) There would be a lump sum payment to complainant in the amount of

$37,500, and

a payment for complainant's attorney fees not to exceed $42,500.

So there would be a total payment by the Agency of $80,000 to

complainant and her attorney.

Complainant would be given a quality step increase next pay period so

she will be getting a step increase.

Complainant will be given 70 hours of compensatory time.

Complainant will retain her title as principal assistant, notwithstanding

the potential change of the areas that she works in - - notwithstanding

deletions from the areas she's responsible for or additions thereto.

In addition, the complainant would maintain the level of responsibility

that she has as a Principal Assistant. And [the agency] would guarantee

her employment as a Principal Assistant in that position for at least

two years.

It is the intention of the parties to put this [agreement] into a

separate writing that both parties will also sign.

The reporter's transcript subsequently contains the following closing

comments exchanged by the parties and the AJ after discussion and

agreement regarding submission of a proposed writing by the agency to

complainant's attorney the following day (October 16, 2002):

AJ: With that in mind, both parties understand the essential terms of

the agreement. Is that correct?

Complainant's Attorney: That is correct. And as I understand it, they

are binding as we have put it on the record and we will reduce it to

writing as a formality.

AJ: Do you understand that those are the essential terms of the

agreement and it is binding to the Agency and it is on the record?

Do you understand that, Mr. [attorney for the agency]?

Agency's Attorney: Yes, your Honor.

By letter to the agency dated January 10, 2003, complainant alleged that

the agency was in breach of the settlement agreement. Specifically,

complainant alleged that the parties had not been able to agree on a

written agreement and the agency failed to implement the terms of the

settlement as required. Complainant, through her attorney, reminded the

agency that a signed agreement was not a condition of the settlement or

the agency's obligations under the settlement agreement. Accordingly,

complainant alleged the agency had breached the settlement agreement.

On appeal, complainant states that only after she sought further EEO

counseling on February 6, 2003, regarding the agency's failure to comply

with the settlement agreement, did the agency undertake efforts to comply

with the agreement.

By letter dated March 13, 2003, the agency asserts that it complied

with the settlement agreement. The agency is not arguing that there

was no settlement agreement. On appeal, the agency submits a copy of

an electronic mail message received by the agency's counsel, indicating

the preliminary steps the agency has taken to comply with the terms of

the October 15, 2002 settlement agreement.

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. Department of Defense,

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. Department 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. United States Postal

Service, 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).

The Commission has previously upheld oral settlement agreements reached

before its Administrative Judges and transcribed by court reporters. See

Acree v. Department of the Navy, EEOC Request No. 05900784 (October

4, 1990) (upholding a settlement agreement reached before an AJ and

transcribed by the court reporter); Rouse v. Department of the Navy,

EEOC Appeal No. 01912573 (September 6, 1991) (applying Acree to uphold

an oral agreement because it was formed in the presence of an AJ and

transcribed by a court reporter).

In the instant case, we find that the parties entered into a binding

settlement agreement on October 15, 2002. As recited herein from the

reporter's transcript of proceedings before the AJ, the terms appear clear

to the Commission. We find that neither party disputes the contents of

the settlement agreement.

On appeal, complainant admits that the agency has ultimately complied with

provision 1 and the portion of provision 2 of the settlement agreement

regarding the lump sum payment to complainant in the amount of $37,500.

Complainant argues that the agency failed to timely comply with all

provisions in the agreement. The agency argues that complainant failed to

timely raise the claim of breach. The Commission finds that the record

shows that the parties were in dispute for one to three months over the

exact language to be used in the written agreement that was anticipated

after the agreement was reached before the AJ. Furthermore, there was

no time limit set in the agreement regarding implementation of the terms

of the agreement. Therefore, we do not find that complainant raised her

claims of breach in an untimely manner. Furthermore, we find that the

agency's actions in implementing provision 1 and the portion of provision

2 regarding the lump sum payment to complainant in the amount of $37,500,

were not unreasonably delayed and that the agency has therefore timely

complied with provision 1 and the portion of provision 2 regarding the

lump sum payment to complainant in the amount of $37,500.

Complainant admits receiving the quality step increase at issue in

provision 3 of the agreement, but argues that the quality step increase

was received one pay period late. The record does not show when the

quality step increase was effective and therefore we can not determine if

the agency has complied with provision 3 of the agreement. Regarding

provisions 4 and 5 and regarding the portion of provision 2 requiring

payment of attorney's fees, the Commission finds that the agency has not

supplied sufficient evidence showing whether it has complied with these

provisions of the settlement agreement. The electronic mail message

dated March 3, 2003, from the LCDR does not address when the quality

step increase (provision 3) was effective and is insufficient to show

compliance with provisions 4 and 5 and with the portion of provision 2

requiring payment of attorney's fees. Therefore, we shall remand the

matter so that the agency may supplement the record showing whether

it has complied with provisions 3, 4, and 5, and with the portion of

provision 2 requiring payment of attorney's fees.

The agency's decision finding no breach of provision 1 and the portion of

provision 2 of the settlement agreement regarding the lump sum payment to

complainant in the amount of $37,500 is AFFIRMED. The agency's decision

finding no breach of the portion of provision 2 requiring payment of

attorney's fees and the agency's decision finding no breach of provisions

3 - 5 of the settlement agreement is VACATED and we REMAND the matter

to the agency for further processing pursuant to the Order herein.

ORDER

Within 30 calendar days of the date this decision becomes final, the

agency shall take the following actions:

Place evidence into the record clearly showing that it has complied

with the provisions 3, 4, and 5 of the October 15, 2002 settlement

agreement and showing that it has complied with the portion of provision

2 requiring payment of attorney's fees. The agency shall also supply

evidence showing the dates of compliance with these provisions.

The evidence placed in the record shall include copies of checks, play

slips, and time slips. Affidavits from responsible agency officials

should be supplied to show compliance with provision 5 of the settlement

agreement.

Issue a decision determining whether the agency has complied with

provisions 3, 4, and 5, of the October 15, 2002 settlement agreement and

with the portion of provision 2 requiring payment of attorney's fees..

A copy of the new decision must be sent to the Compliance Officer as

referenced herein.

IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)

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 19848,

Washington, D.C. 20036. 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 (M0701)

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 19848,

Washington, D.C. 20036. 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 (T0900)

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 (Z1199)

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 that the Court appoint

an attorney to represent you and that the Court 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 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

October 15, 2003

__________________

Date