01986774
07-20-2000
Eugenia Hurd, Complainant, v. Daniel R. Glickman, Secretary, Department of Agriculture, Agency.
Eugenia Hurd, )
Complainant, )
)
v. ) Appeal No. 01986774
) Agency No. 970998
Daniel R. Glickman, )
Secretary, )
Department of Agriculture, )
Agency. )
____________________________________)
DECISION
The Commission finds that the agency decision dated May 31, 1998, which
found that the agency was in compliance with the terms of the August 9,
1996 settlement agreement, was proper.<1> See 64 Fed. Reg. 37,644,
37,659, 37,660 (1999)(to be codified and hereinafter referred to as
EEOC Regulation 29 C.F.R. � 1614.402); 29 C.F.R. � 1614.504(b); and 64
Fed. Reg. 37,644, 37,659 (1999)(to be codified at 29 C.F.R. � 1614.405).
The settlement agreement provided, in pertinent part, that:
The Agency agrees to:
. . .
Have the Forest Administrator Officer [FAO] intervene in disputes which
arise between the Complainant and her first and second line supervisors.
In the [FAO's] absence, or if he's unsuccessful in resolving the
disputes, the Deputy Forest Supervisor [DFS] will intervene. It is
mutually agreed that requests for intervention will be limited to
those instances where the complainant and her work supervisors have
attempted to work out a mutually acceptable solution to the matter in
dispute but have been unsuccessful;
Hold the Complainant's first and second line work supervisors
responsible for treating the Complainant in a professional manner
. . .;
. . .[W]ithin thirty calendar days from October 15, 1996, provide and
pay for a training session on Multiple Sclerosis to all employees in
the Budget and Finance Staff Group of the Idaho-Panhandle National
Forests. This session will be open to all employees on the Forest.
The [FAO] will participate in the training session as a facilitator.
The training will be conducted by a medical professional with good
knowledge of the effects of Multiple Sclerosis, to be mutually agreed
upon by the Complainant and [FAO]. The [FAO] and the Complainant,
or her union representative, will mutually develop an outline of the
subject matter to be covered by the medical professional.
Both Parties agree . . .
. . .
To cooperate and communicate in good faith and to abide by the terms
of the agreement;
To declare this complaint resolved through this Settlement
Agreement. . .;
. . .
. . . [T]he agency will, within 15 calendar days, provide the Complainant
a written notice explaining/ outlining the specific actions taken to
implement the agreement. . . .
By letter to the agency dated July 22, 1997, complainant alleged that
the agency was in breach of parts of the settlement agreement, and
she requested that the agency implement the terms of the agreement.
Specifically, complainant alleged that her supervisors and the FAO did
not like or support the agreement, she was not treated with respect or
decency, and the Multiple Sclerosis training was a last minute inquisition
�to try to get the trainer to say something that would disprove [her]
condition in some way.� Specifically, complainant alleged that the
agency used the training session to show she was not really disabled.
She also alleged that her supervisor studies and watches her all the time,
she is burdened with more specific requirements than those articulated
in the settlement agreement, and she never received the notice explaining
or outlining the specific actions to implement the agreement.
In the May 31, 1998 decision, the agency concluded that it was in
compliance with the terms of the settlement agreement. First, the agency
found that complainant had not asked the FAO to intervene in disputes
with complainant and her supervisor and that the DFS repeatedly met with
complainant and her supervisor to ensure communication between the two.
Also, the agency found that management took appropriate measures to
address the supervisors' behavior towards complainant. Next, the agency
found that the training session was held as provided by the settlement
agreement and that a notice was sent to all employees. In addition, the
agency found that complainant did not state how the agency breached Part
3, Sections 3 and 4 of the agreement. Finally, the agency found that it
documented and completed an action plan and that complainant was provided
a copy when the agency responded to her claims of noncompliance.
Volume 64 Fed. Reg. 37,644, 37,656 (1999)(to be codified and hereinafter
referred to as 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 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).
Pursuant to 64 Fed. Reg. 37,644, 37,660 (1999)(to be codified and
hereinafter referred to as 29 C.F.R. � 1614.504(b)), an agency has
35 days from the receipt of a claim of breach to resolve the matter.
The Commission interprets that provision to mean that an agency has
35 days within which to cure any breach that has occurred. See Byrd
v. Department of Agriculture, EEOC Appeal No. 01961893 (July 3, 1997);
Covington v. United States Postal Service, EEOC Appeal No. 01913211
(September 30, 1991).
According to the statement of the DFS, he continuously participated in
meetings with complainant and her supervisors to resolve issues. In her
October 8, 1997 letter explaining her complaint, complainant stated,
�Over the course of the last year and 2 months, any disputes were taken
up in meetings with [the DFS]. He encouraged me to work with them all,
. . .� Also, in her journal, complainant acknowledged that she was not
able to meet with the DFS on only two occasions. The first occasion
occurred when the DFS was on vacation. The second occasion was when
the DFS was not available on July 21, 1997, but he was available two
days later. Complainant did not meet with the DFS on July 23, 1997,
because she filed a breach of settlement claim against the agency.
Since it appears that the DFS intervened in conflicts between complainant
and her supervisors when requested, the agency has complied with Part 1,
Section 2 of the agreement.
Next, complainant alleged that she is not treated professionally by
her supervisors. In his statement, the DFS stated that he and her
supervisor took steps to address this type of inappropriate behavior.
Afterwards, the supervisors treated her in a professional manner.
In her letter explaining the complaint, complainant acknowledged the
DFS's role in handling the problem with her supervisors. The agency's
action is in compliance with the agreement.
Regarding Part 1, Section 4 of the agreement, complainant alleged that
the one day notice of the training session was not in the spirit of
the settlement agreement and that the session was a negative event.
The settlement agreement specifically stated that the training session
would be open to all employees and would be conducted by a medical
professional who would have good knowledge of the effects of the disease,
would be mutually chosen by the complainant and FAO, and would follow a
mutually developed outline designed by the complainant and FAO. According
to agency email messages in the record and complainant's statements,
the agency held a Multiple Sclerosis training for all employees.
According to electronic messages between the agency and complainant,
complainant participated in the selection and programming of the training
session. In an email dated November 7, 1996, the agency gave employees
in the field notice about the program on November 8, 1996. The program
provided employees a setting to ask the medical professional questions
about the disease. Therefore, the agency complied with the agreement.
In addition, complainant did not explain how the agency breached Part 3,
Sections 3 or 4 of the settlement agreement. She only stated that the
agency breached Section 3 when it failed to cooperate or communicate
with her in good faith and that the agency breached Section 4 when it
put more specific requirements on complainant than those articulated in
the agreement. Complainant's July 23, 1997 and October 8, 1997 letters
fail to explain these claims. Without further explanation on how the
agency breached these settlement provisions, the Commission finds no
evidence of breach.
Finally, complainant alleged that she did not receive the action plan
within 15 days of the implementation of the agreement as agreed in Part
3, Section 6 of the settlement agreement. Specifically, in her July 22,
1997 letter to the agency, complainant stated that neither she nor her
representative remembered receiving the action plan. She wanted the
agency to check its records to verify if she received the action plan
and to send her a copy. Also, complainant stated in her October 2, 1997
clarification letter that she did not remember receiving the action plan
and that she believed an EEO counselor had all of the EEO paperwork.
On October 15, 1997, the agency provided a copy of the action plan to
complainant when it responded to her claims of noncompliance. Therefore,
the Commission finds that the agency cured any breach of this settlement
provision by sending complainant a copy of the action plan.
Accordingly, the agency's decision is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)
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. 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:
July 20, 2000
____________________________
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_______________ __________________________
Date 1On November 9, 1999, revised regulations governing the EEOC's
federal sector complaint process went into effect. These regulations
apply to all federal sector EEO complaints pending at any stage in
the administrative process. Consequently, the Commission will apply
the revised regulations found at 64 Fed. Reg. 37,644 (1999), where
applicable, in deciding the present appeal. The regulations, as amended,
may also be found at the Commission's website at www.eeoc.gov.