0520140098
10-15-2015
Joana C.,1 Complainant, v. Deborah Lee James, Secretary, Department of the Air Force, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Joana C.,1
Complainant,
v.
Deborah Lee James,
Secretary,
Department of the Air Force,
Agency.
Request No. 0520140098
Appeal No. 0120131212
Agency No. 6W0B11022
DECISION ON REQUEST FOR RECONSIDERATION
Complainant timely requested reconsideration of the decision in EEOC Appeal No. 0120131212 (November 15, 2013). EEOC Regulations provide that the Commission may, in its discretion, grant a request to reconsider any previous Commission decision where the requesting party demonstrates 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. See 29 C.F.R. � 1614.405(c).
After reconsidering the previous decision and the entire record, the Commission finds that the request meets the criteria of 29 C.F.R. � 1614.405(c), and it is the decision of the Commission to grant the request. For the reasons that follow, the previous decision is MODIFIED.
BACKGROUND
During the period at issue, Complainant worked as a barber at the Agency's Air Force Academy, Colorado Springs, Colorado. On November 16, 2011, Complainant filed a formal complaint alleging that the Agency discriminated against her on the basis of race (African American) and in reprisal for prior protected activity when it subjected her to a hostile work environment.
On February 10, 2012, Complainant and the Agency entered into a settlement agreement that provided, in relevant part, that the Agency would take the following actions:
a. Grant the Complainant a 40-hour time-off award. This award must be taken with the concurrence of the Complainant's supervisor and in accordance with all Agency rules and regulations.
b. Conduct equal employment opportunity training for all 10th FSS barber shop employees within 6 months of the date this agreement is signed by the Complainant. This training will be conducted by an agency outside of USAFA and will be selected by the 10th FSS leadership. However, Complainant and her representative will provide suggestions on how to source such training.
c. Screen Complainant's employment records, to include her Form 971, to insure there is no adverse disciplinary information contained therein.
d. Give good faith consideration to Complainant's request to be allowed to perform beautician duties on a periodic basis in order to better serve the cadets at the Air Force Academy.
e. Give Complainant priority consideration for a period of two years for any vacant beautician position that may arise within that time period, assuming her performance is satisfactory and she is qualified for the position.
f. Pay the Complainant the sum of $1,000 (one thousand dollars) paid in a lump sum with no deductions or withholding. Complainant understands that although the Agency will make every attempt to have these funds paid within 60 days, it is not possible to guarantee that the payment can be made within this period of time. Therefore, failure to make payment within 60 days will not be cause to invalidate this agreement. The appellant [sic] will be responsible for any and all taxes which are to be paid on this amount to any state, local or federal agency from this payment.
The settlement agreement also stated that Complainant understood the agreement, read it, and entered into it voluntarily.
In a May 7, 2012, letter to the Agency, Complainant alleged that the Agency breached the settlement agreement. She asserted that she did not receive the $1,000 check in a timely manner and that she never received the forty-hour time-off award. In a May 11, 2012, letter to the Agency, Complainant asserted that she asked the Cadet Barber/Beauty Shop Manager about the time-off award on March 21, 2012, because she wanted to use it for the mandatory week of leave during Spring Break. According to Complainant, the Manager stated that, in the absence of official notice, Complainant would have to use leave without pay.2
In a May 24, 2012, final determination, the Agency determined that it had not breached the settlement agreement. It acknowledged that it had not processed the forty-hour time-off award immediately. The Agency stated that, after Complainant raised the breach allegation, a Human Resources official "realized that she inadvertently forgot to upload the 40 hours." Because Complainant was no longer working at the Agency, the Agency processed the award as a monetary payment and deposited the payment in Complainant's bank account on May 17, 2012. The decision stated that Complainant confirmed receipt of the payment in a May 18, 2012, e-mail.
Complainant appealed the Agency's final determination to the Commission. On appeal, Complainant argued that the Agency breached the agreement because it did not provide her with the time-off award that she was promised. In addition, Complainant raised a number of issues for the first time on appeal. She asserted that she was taking medication at the time that she entered into the agreement and that her "head was very cloudy." She submitted a February 9, 2012, medical statement prescribing medications for pain and muscle spasms. Complainant also asserted that her representative and Agency representatives coerced her into signing the agreement by telling her that it was the Agency's final offer and that she could seek other employment if she did not like it. Further, she claimed that Agency managers discussed her case at a meeting and that Agency representatives told her that she would receive $1,000 tax free. In addition, Complainant argued that the Agency did not conduct EEO training pursuant to the agreement and did not contact her or her representative for suggestions on how to source the training.
After the Agency filed a brief in opposition to Complainant's appeal, Complainant submitted a response to the brief. She asserted that she requested but was denied the opportunity to style the hair of female cadets "on numerous occasions." Complainant did not cite the dates of her requests. Although unclear, it appears that Complainant was referring to requests that she made when she was working in the laundry room, rather than the barber shop, because of an injury. She also asserted that, during the settlement meeting, Agency representatives told her that the time-off award would appear on her next Leave and Earning Statement (LES). Finally, Complainant claimed that her representative was biased in favor of the Agency and coerced her into signing the agreement.
The Agency argued that it complied with the terms of the settlement agreement.3 The Agency stated that the forty-hour time-off award was not immediately processed because of an administrative oversight and that the Agency subsequently provided Complainant with one week's pay.
With respect to provision (b) of the agreement, the Agency stated that it conducted EEO training for all employees in 2011. The Agency submitted an affidavit from the Cadet Barber/Beauty Shop Manager, who stated that the Agency arranged for outside instructors to conduct training classes on May 14 and December 2, 2012. For the May 14 class, two hair stylists provided training on hair styles, conditioning treatments, and haircuts for African American customers. For the December class, two instructors "worked with the employees on African American fade haircuts, on a one-to-one basis for the barbers and beauticians on female African American haircuts," and on "clipper haircuts on all different types of hair." The manager stated that "this culturally based skills training has resulted in the current employees being more sensitive to diversity, especially African American clientele and co-workers."
In addition, the Agency stated that a review of Complainant's records disclosed no adverse information. With respect to provision (d), the Agency asserted that Complainant did not ask to perform beautician duties. The Agency surmised that this was because she sustained an injury and worked only eight days in the Barber/Beauty Shop between February 10, 2012, the date of the agreement, and April 24, 2012, the last date of her employment at the Agency. The Cadet Barber/Beauty Shop manager and a Human Resources official stated in affidavits that no beautician vacancies occurred in the Shop, and the Agency argued that Complainant's departure from the Agency "effectively terminated the applicability of" provision (e). Further, the Agency argued that the plain language of the agreement contradicts Complainant's assertion that she should have received the $1,000 tax free. In response to Complainant's assertion that she was under medication when she signed the agreement, the Agency noted that Complainant was represented by a retired EEO Counselor and argued that Complainant entered into the agreement voluntarily.
In the previous decision, the Commission affirmed the Agency's finding that it had not breached the settlement agreement. The Commission found that the Agency substantially complied with provision (a). The Commission noted that the failure to process the time-off award expeditiously was due to an inadvertent error and concluded that, to the extent that the Agency breached the agreement by not providing the award to Complainant expeditiously, the Agency cured any such breach by May 18, 2012.
The Commission further noted that Complainant raised several matters, including additional breach claims, for the first time on appeal. Because the Agency responded to those matters, the Commission found it unnecessary to remand them to the Agency for further consideration. Instead, the Commission addressed the matters in the decision.
The Commission determined that Complainant entered into the settlement agreement knowingly. Although Complainant submitted a medical statement revealing prescribed medications, she offered no medical evidence to show that she was medically incapacitated when she executed the settlement agreement. In addition, in signing the agreement, Complainant and her representative affirmed that they read and understood the agreement and entered into it voluntarily. The Commission accordingly declined to declare the agreement void.
The Commission also determined that Complainant failed to establish a breach of provision (f) because the plain language of the provision stated that Complainant was responsible for the payment of taxes. Similarly, the Commission determined that Complainant's assertion that the time-off award should have appeared on her next LES did not establish that the Agency breached the agreement. The Commission noted that the agreement was silent on this matter. In addition, the Commission found that Complainant provided no evidence to support her claim that her case was discussed at a management meeting.
Further, the Commission noted that the Agency stated that it screened Complainant's records in accordance with provision (c) and found no adverse information. The Commission also noted that the Agency stated that Complainant made no request to perform beautician duties pursuant to provision (e) and that Complainant's departure from the Agency "effectively terminated the applicability of" provision (e). Finally, the Commission noted that the Agency conducted "cultural sensitivity" training for barber shop employees in May and December 2012. The Commission concluded that the Agency complied with the settlement agreement.
ARGUMENTS ON REQUEST FOR RECONSIDERATION
In her request for reconsideration, Complainant reiterates her assertions that she was under the influence of medication during the settlement meeting and that her representative coerced her into signing the agreement. She submits copies of January and February 2012 prescriptions for medications. Complainant states that she did not know what day it was and initially wrote the wrong date when signing the settlement agreement. In addition, she asserts that her representative told her that the offer was the only one she would receive and that she should resign if she did not like it. Further, Complainant argues that the May and December 2012 hair-cutting and hair-styling training did nothing to eliminate race discrimination in the workplace.
In response, the Agency argues that Complainant's request fails to meet the criteria for reconsideration. The Agency asserts that Complainant "played an extensive role in negotiating the various provisions" of the settlement agreement and displayed no evidence of a physical or mental impairment during the negotiations. The Agency submits an affidavit in which Complainant's former representative denies that she coerced Complainant into signing the agreement, denies that she told Complainant that the agreement was the only offer Complainant would receive, and states that she would have canceled the meeting if she had perceived Complainant to be physically or mentally incapacitated. The Agency also submits a Memorandum for the Record in which the individual who represented management during settlement negotiations states that Complainant "appeared to be clear, articulate, and engaging" during the negotiations. In addition, the Agency re-submits the affidavit from the Cadet Barber/Beauty Shop Manager.
ANALYSIS
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. Dep't of Def., EEOC Request No. 05960032 (Dec. 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. Dep't of Veterans Affairs, EEOC Request No. 05900795 (Aug. 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. U.S. Postal Serv., EEOC Request No. 05910787 (Dec. 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).
Because the Commission favors the voluntary resolution of discrimination complaints, settlement agreements are not lightly set aside. We have consistently required some outside evidence of incapacity to prove a complainant's incapacity to enter into a settlement agreement. Compare Kocher-Kinsman v. Dep't of Agric., EEOC Appeal No. 01992748 (Jan. 18, 2000) (statements from psychiatrist and physician regarding complainant's significant anxiety, post-traumatic stress disorder, and symptoms due to withdrawal of medication established that complainant had diminished capacity), request for reconsid. denied, EEOC Request No. 05A00376 (May 24, 2000) with v. U.S. Postal Serv., EEOC Appeal No. 01960232 (Nov. 5, 1996) (feeling "uncomfortable" and "put on the spot," and initially writing the wrong date when signing the agreement, insufficient to prove incapacity). Similarly, the party raising the defense of coercion must show that there was an improper threat of sufficient gravity to induce assent to the agreement and that the assent was in fact induced by the threat. Such a threat may be expressed, implied, or inferred from words or conduct, and must convey an intention to cause harm or loss. A complainant's bare assertions will not justify a finding of coercion. Cannella v. Dep't of Veterans Affairs, EEOC Appeal No. 01995444 (Dec. 5, 2000), req. for reconsid. denied, EEOC Request No. 05A1196 (Apr. 13, 2001); Lenihan v. Dep't of the Navy, EEOC Request No. 05960605 (Dec.5, 1997).
Upon review, the Commission finds that the previous decision did not clearly err in declining to void the settlement agreement due to incapacity or coercion. Complainant has submitted evidence regarding her medication, but she has not shown that she was incapacitated at the time that she signed the agreement. See Sullivan v. Dep't of the Army, EEOC Request No. 05A60240 (Feb. 3, 2006) (complainant's assertions that she was under the effects of prescription medication and was coerced into signing settlement agreement insufficient to void agreement where, although complainant submitted medical evidence of her condition, she presented no evidence of incapacity). Complainant's error when writing the date does not establish that she lacked capacity to contract. See Brady v. U.S. Postal Serv., EEOC Appeal No. 01960232 (Nov. 5, 1996). Further, Complainant's unsupported assertion that her representative coerced her into signing the settlement agreement is insufficient to establish that she did not sign the agreement voluntarily. She has offered no evidence of a threat of sufficient gravity to induce assent to the agreement. Further, as the previous decision noted, Complainant affirmed that she read and understood the agreement and entered into it voluntarily when she signed the agreement. Accordingly, the Commission finds that Complainant has not met her burden of establishing incapacity or coercion.
The Commission further finds, however, that the previous decision's determination that the Agency complied with provision (b) of the settlement agreement involved a clearly erroneous interpretation of material fact. In that regard, we note that the plain language of the settlement agreement calls for the Agency to "[c]onduct equal employment opportunity training for all 10th FSS barber shop employees" within six months of the agreement. The Agency did not conduct such training. Instruction regarding hair styles and haircuts, even to the extent that it constitutes "culturally based skills training," is not equal employment opportunity training. Equal employment opportunity (EEO) training should be presented by an individual with experience in federal EEO laws, should address individuals' rights and responsibilities under those laws, should discuss what constitutes unlawful employment discrimination, should address managers' and supervisors' responsibilities to ensure a discrimination-free workplace, should explain the process for filing an EEO complaint, and should make clear that the law prohibits retaliation for opposing discrimination or participating in the EEO process.
In addition, the agreement states that "complainant and her representative will provide suggestions on how to source such training." There is no evidence that Complainant had an opportunity to provide suggestions for the source of training. Accordingly, we find that the Agency breached provision (b) of the settlement agreement.
When the Commission finds that a settlement agreement has been breached, the only two remedies available are specific performance of the terms of the agreement or reinstatement of the underlying EEO complaint at the point processing ceased. 29 C.F.R. � 1614.504(c). In this case, we find that the appropriate remedy is to order specific performance of the terms of the settlement agreement. Accordingly, we will order the Agency to perform its obligations to conduct equal employment opportunity training for all barber shop employees and to ensure that Complainant has an opportunity to provide suggestions for the source of the training. We remind the Agency that evidence regarding Complainant's suggestions for the source of the training; the nature, length, and substance of the training; the qualifications of the individual providing the training; and the attendees of the training is material to a determination whether the Agency has performed its obligations. See Demargosian v. Dep't of Def., EEOC Appeal No. 0120131170 (May 16, 2013) (e-mail stating that agency official conducted training insufficient to establish compliance with settlement agreement where record contained no affidavit regarding date, length, and nature of training and no sign-in sheet or certificate of completion for attendees of training).
CONCLUSION
After reconsidering the previous decision and the entire record, the Commission finds that Complainant's request meets the criteria of 29 C.F.R. � 1614.405(c), and it is the decision of the Commission to grant the request. The decision of the Commission in Appeal No. 0120131212 is MODIFIED as to provision (b) of the settlement agreement only. The Commission REMANDS Complainant's complaint for further processing consistent with this decision and the ORDER set forth below. There is no further right of administrative appeal on the decision of the Commission on a Request to Reconsider.
ORDER
The Agency is ORDERED to take the following remedial action:
(1) Within ninety (90) days of the date this decision becomes final, the Agency shall take all actions necessary to ensure its compliance with provision (b) of the February 10, 2010, settlement agreement. The Agency shall conduct equal employment opportunity training for all 10th FSS barber shop employees and shall give Complainant an opportunity to provide suggestions on how to source such training.
(2) Within sixty (60) days thereafter, the Agency shall provide documentation to Complainant and the Compliance Officer, as referenced below, that it has conducted equal employment opportunity training for all 10th FSS barber shop employees. The documentation shall include evidence demonstrating when the training occurred; who attended; the nature, length, and subject matters covered; and the qualifications of the individual who provided the training. The Agency also shall provide documentation demonstrating that it gave Complainant an opportunity to provide suggestions on how to source the training.
The Agency is further directed to submit a report of compliance, as provided in the statement entitled "Implementation of the Commission's Decision." The report shall include supporting documentation verifying that the corrective action has been implemented
ATTORNEY'S FEES (H0610)
If Complainant has been represented by an attorney (as defined by 29 C.F.R. � 1614.501(e)(1)(iii)), he/she is entitled to an award of reasonable attorney's fees incurred in the processing of the complaint. 29 C.F.R. � 1614.501(e). The award of attorney's fees shall be paid by the Agency. The attorney shall submit a verified statement of fees to the Agency -- not to the Equal Employment Opportunity Commission, Office of Federal Operations -- within thirty (30) calendar days of this decision becoming final. The Agency shall then process the claim for attorney's fees in accordance with 29 C.F.R. � 1614.501.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610)
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 77960, Washington, DC 20013. 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.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (Q0610)
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 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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ C
Carlton M. Hadden, Director
Office of Federal Operations
Oct. 15, 2015
__________________
Date
1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website.
2 Complainant also alleged that the Agency discriminated against her and subjected her to a hostile work environment on the basis of race and in reprisal for protected activity when it constructively discharged her. By letter dated May 14, 2012, the Agency accepted the claim as an amendment to a complaint, Agency Number 6W0B12012, separate from the matter at issue here.
3 The Agency also argued that Complainant's appeal was untimely filed. Noting that the Agency's final determination did not provide any address for filing an appeal and that Complainant mistakenly mailed her appeal to the EEOC's Phoenix District Office, the Commission accepted the appeal as timely filed.
---------------
------------------------------------------------------------
---------------
------------------------------------------------------------
2
0520140098
2
0520140098