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