01A34975
07-08-2004
Hallie M. Taylor, Complainant, v. Donald H. Rumsfeld, Secretary, Department of Defense, (Defense Commissary Agency), Agency.
Hallie M. Taylor v. Department of Defense (Defense Commissary Agency)
01A34975
July 8, 2004
.
Hallie M. Taylor,
Complainant,
v.
Donald H. Rumsfeld,
Secretary,
Department of Defense,
(Defense Commissary Agency),
Agency.
Appeal No. 01A34975
Agency No. DCWP20020005
DECISION
Complainant filed an appeal with this Commission from a final decision
by the agency finding that it was in compliance with the terms of the
June 11, 2002 settlement agreement into which the parties entered.
The settlement agreement provided, in pertinent part, that the agency
would:
Pay [complainant] the total sum of Fifteen Thousand dollars ($15,000.00)
to include all attorney's fees. Check to be made payable to [complainant]
and [complainant's attorney];
(b) Provide [complainant] with priority consideration for the next
available WG-05, position at the North Island Commissary for which she
has applied and been determined to be qualified;
(c) Not attempt to controvert [complainant's] current Workers'
Compensation claim to the Department of Labor;
(d) Ensure [complainant] that there will be no reprisal or retaliation
for her having filed an EEO complaint;
Provide [complainant] with a meeting with [management official S1]
in order to have a frank and open discussion to �clear the air� so she
can return to work with a clean slate.
By letter to the agency dated June 30, 2003, complainant alleged that
the agency was in breach of the settlement agreement, and requested
that the agency reinstate her complaint. Specifically, complainant
alleged that the agency failed to announce or open any WG-5 positions
for competitive applications. Instead, complainant contends, the agency
deliberately undertook a reduction in force (RIF) to punish employees
filing EEO complaints and to replace them with younger employees.
Complainant also alleged that the agency controverted her current Workers'
Compensation claim and that the agency created a hostile work environment
against her in reprisal for the settlement agreement by interfering
with her work duties on June 5, 2003, by ignoring a complaint she
filed against the employee who interfered with her work duties, by
refusing complainant's request for a representative during a meeting
with complainant's supervisor and by issuing her a Disciplinary Letter
dated March 25, 2003.
In its determination<1>, the agency concluded that complainant's
breach allegations were untimely brought to the agency's attention,
and therefore, the agency denied complainant's request to reinstate her
settled complaint.
In her August 15, 2003 appeal statement, complainant states that the
agency breached provision (b) by not opening a WG-5 position available
through competitive applications. She states that the agency continues to
hire students, intermittent employees and engages in nepotism in hiring.
Additionally, she reiterates that provision (c) has been breached when the
agency controverted her OWCP claim. Finally, with regard to provision
(d), complainant states that the agency has retaliated against her by
creating a hostile work environment by interfering with the duties of
her position, by ignoring her complaint she filed against the employee
who interfered with her work duties, by refusing complainant's request
for a representative during a meeting with complainant's supervisor and
by issuing her a Disciplinary Letter dated March 25, 2003.<2>
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 the instant case, we concur with the agency that complainant's breach
claims regarding provision (c) is untimely. The record shows that a
hearing regarding complainant's Workers' Compensation claim was held on
March 18, 2003. We find complainant either knew or should have known at
that time that the agency elected to controvert her claim. Complainant's
June 30, 2003 notice of breach to the agency was therefore untimely.
Regarding the provision of priority consideration as described in
provision (b), complainant claims that the agency failed to announce or
open any WG-5 positions for competitive applications. We note, however,
that the settlement agreement does not guarantee that any WG-5 positions
would become available and complainant does not specify any particular
WG-5 position that the agency failed to announce or fill to avoid
providing her priority consideration between the time the settlement
agreement was executed (June 11, 2002) and the time of complainant's
notice to the agency that breach had occurred. Accordingly, we find
that complainant failed to show that provision (b) has been breached.
EEOC regulation 29 C.F.R. � 1614.504 provides that if a complainant
believes that the agency has failed to comply with the terms of a
settlement agreement, she may request that the terms of the agreement
be specifically implemented, or, alternatively, that the complaint be
reinstated for further processing. However, the Commission has held
that a complaint which alleges reprisal or further discrimination in
violation of a settlement agreement's "no reprisal" clause, is to be
processed as separate complaints and not as a breach of settlement.
29 C.F.R. � 1614.504(c).
We note that on appeal, complainant alleges subsequent incidents
of reprisal including the creation of a hostile work environment,
interference with the duties of her position, ignoring a complaint
she filed against the employee who interfered with her work duties,
refusing complainant's request for a representative during a meeting with
complainant's supervisor and issuing her a Disciplinary Letter dated
March 25, 2003. Complainant is advised that if she wishes to pursue,
through the EEO process, the additional reprisal claims she raises for
the first time on appeal, she should, if she has not already done so,
initiate contact with an EEO Counselor within 15 days after she receives
this decision. The Commission advises the agency that if complainant
seeks EEO counseling regarding the new claims within the above 15-day
period, the date complainant filed the appeal statement in which she
raised these claims with the agency shall be deemed to be the date of
the initial EEO contact, unless she previously contacted a counselor
regarding these matters, in which case the earlier date would serve as
the EEO Counselor contact date. Cf. Alexander J. Qatsha v. Department
of the Navy, EEOC Request No. 05970201 (January 16, 1998).
Accordingly, we AFFIRM the agency's determination finding no breach.
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 (S0900)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
July 8, 2004
__________________
Date
1The agency's letter of determination regarding complainant's breach
allegations is undated. However, the record reveals the letter was mailed
to complainant on August 5, 2003, and we will refer to it by that date.
2We note that complainant submitted an additional appeal statement
postmarked September 18, 2003, which is beyond the applicable limitations
period for such submissions set forth in 29 C.F.R. � 1614.403(d).
Accordingly, we will not consider this statement in the present appeal.