01a40859
07-08-2004
Gaylynn Mann, Complainant, v. Ann M. Veneman, Secretary, Department of Agriculture, Agency.
Gaylynn Mann v. Department of Agriculture
01A40859
July 8, 2004
.
Gaylynn Mann,
Complainant,
v.
Ann M. Veneman,
Secretary,
Department of Agriculture,
Agency.
Appeal No. 01A40859
Agency No. 020534
Hearing No. 130-A3-8047X
DECISION
Complainant timely appealed to the Commission for a determination as to
whether the agency has complied with the terms of a settlement agreement.
On March 28, 2003, the parties resolved complainant's complaint by
entering into a settlement agreement, which provided, in pertinent part,
that the agency agreed to take the following action:
(a) Transfer the Complainant to a permanent, full-time Program
Technician position in the Marshall County FSA Office, effective Pay
Period 7, April 6, 2003. The programs for which the Complainant will
be responsible are those programs currently assigned to [a named agency
employee, A1]. The Complainant and [A1] will be together in Marshall
County for one Pay Period.
(b) Provide training to the Complainant by the County Executive Director,
District Director, and other Program Technicians from other FSA County
Offices, on the programs which will be assigned to the Complainant.
The subject training will be completed within six months from the date
of this Agreement.
(c) Enroll the Complainant in a mutually agreed upon training course
on effective interviewing techniques, within six months of the date of
this agreement. The Government will pay for the training course which
will not exceed the cost of $500.<1>
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).
By letter to the agency dated October 1, 2003, complainant, through her
attorney, alleged that the agency breached the March 28, 2003 settlement
agreement, and requested that the terms of the settlement agreement
be specifically implemented. Specifically, complainant, through her
attorney, alleges that the agency breached provisions (a), (b), and (c)
of the agreement. Regarding provision (a), complainant asserts that
A1 �took sick leave, and then returned only to clean out her office
and leave. She never returned to train the complainant in the duties
of her new position.� Regarding provision (b), complainant states that
she received an Individual Development Plan itemizing the training she
was to receive pursuant to the settlement agreement. Complainant, in her
October 1, 2003 breach letter to the agency, asserts that she has not been
trained in numerous areas. In addition, complainant states that her new
supervisor has subjected her to a hostile work environment which is part
of a new EEO complaint being filed. Regarding provision (c), complainant
states that she was �required to attend a free, inner-city program for
high school juniors and seniors,� which was not mutually agreed upon.
The record reveals that the agency did not respond to complainant's
allegations or make any argument on appeal. Further, the record contains
insufficient evidence to make a determination as to whether the agency
breached provisions (a), (b) and (c) of the settlement agreement.
Therefore, we shall remand the matter so that the agency may supplement
the record with evidence showing whether it has complied with provisions
(a), (b) and (c) of the settlement agreement.
The matter is REMANDED to the agency for further processing in accordance
with this decision and the Order herein.
ORDER
Within 30 days after the date this decision becomes final, the agency
is ORDERED to take the following action:
1) Conduct a supplemental investigation to determine whether the
agency is in compliance with provisions (a), (b), and (c) of the
settlement agreement. Specifically, the agency shall supplement the
record with affidavit and/or documentary evidence showing whether it
is in compliance with provisions (a), (b), and (c) of the March 28,
2003 settlement agreement.
2) Thereafter, the agency shall issue a decision, with appeal rights
to the Commission, concerning whether it breached provisions (a), (b),
and (c) of the agreement.
A copy of the 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 (R0900)
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 (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
July 8, 2004
__________________
Date
1The settlement agreement also provides that complainant's sick leave
would be restored to 100 hours of sick leave and that her annual
leave would be restored to 100 hours of annual leave; complainant's
grade level would be as follows: (1) on October 22, 2000, complainant's
record would reflect that she was brought on board at the CO-7/6 level;
(2) on March 11, 2001, complainant's quality step increase (QSI) to the
CO-7/7 level; (3) on March 10, 2002, complainant's QSI to the CO-7/8
level; (4) on October 20, 2002, complainant's within grade increase
(WGI) to the CO-7/9 level; and on March 23, 2003, complainant's QSI
to the CO-7/10 level; complainant to be paid a lump sum of $15,000;
and that the agency would process necessary paperwork to pay reasonable
attorney's fees and cost pursuant to 29 C.F.R. 1614.501(e) within 30 days
from the date of receipt of an itemized bill from complainant's attorney.
These provisions are not at issue in the instant appeal.