0120112272
01-16-2013
Joanne V. Kemper, Complainant, v. Dr. Rebecca Blank, Acting Secretary, Department of Commerce (National Oceanic & Atmospheric Administration), Agency.
Joanne V. Kemper,
Complainant,
v.
Dr. Rebecca Blank,
Acting Secretary,
Department of Commerce
(National Oceanic & Atmospheric Administration),
Agency.
Appeal Nos. 0120112272
Agency Nos. 07-54-00151, 08-54-00141, 09-54-00099, 09-54-00742 & 10-54-00734
DECISION
On March 22, 2011, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission) after she notified the Agency that it breached a settlement agreement the parties entered into and the Agency did not make a final Agency determination (FAD) on her breach claim. The appeal is accepted. See 29 C.F.R. � 1614.504(b).1
BACKGROUND
At the time she entered into a settlement agreement with the Agency, Complainant was employed as a Supervisory Management Analyst Officer at the Agency's National Oceanic and Atmospheric Administration (NOAA), Office of the Chief Financial Officer, in Germantown, Maryland.2
On July 7, 2010, Complainant and the Agency entered into a settlement agreement to resolve all her administrative EEO claims, which raised claims of sex, age and reprisal discrimination. The settlement agreement provided, in pertinent part, that:
2. ...Complainant agrees to:
a. Voluntarily retire effective one year from the effective date ("Effective Date") of the settlement agreement ("Agreement").... Nothing in this Agreement precludes Complainant...from retiring prior to one year from the Effective Date....
b. In the event Complainant has not retired by the close of business on the date that is one year from the Effective Date, Complainant shall voluntarily resign from employment with the Agency. Complainant will complete [her portion of a]...Request for Personnel Action, Standard Form 52, indicating her voluntary, irrevocable resignation.... Nothing in this Agreement precludes Complainant...from resigning prior to the Effective Date....
d. Direct potential employers or other institutions seeking reference for employment, education, training or certification purposes concerning Complainant by phone or email to [name], Supervisory Human Resources Specialist, Workforce Management Office, NOAA, for such reference....
3. [T]he Agency agrees to:
a. Process the Request for Personal Action, Standard Form 52, referenced in paragraph 2(b) above, if Complainant does not resign or retire on or before the date that is one year from the Effective Date of this Agreement;
b. ...continue Complainant on administrative leave, with full pay and benefits, up to and including her last day of employment... [under this term, Complainant also agreed that if she obtained a job outside the federal government during the administrative leave period she would retire or resign, and if she got a job in another federal agency during this period the Agency would process the paperwork necessary to effect a transfer. If Complainant obtained a job in another federal agency within the one year administrative leave period, she would receive a lump sum payment for the remainder of the administrative leave salary she would have otherwise received. This lump sum payment did not apply if she obtained a job outside the federal government].
c. Expunge any and all documents of, relating to and/or referring to any disciplinary action, verbal or written, or other negative statements toward Complainant from Complainant's Official Personnel Folder, including, but not limited to, the Letter of Reprimand....
d. Rescind and expunge any and all Proposals to Remove issued to Complainant.
e. Provide the Complainant with the applicable letter of reference, attached hereto, to be placed on Agency letterhead and signed by [above Supervisory Human Resources Specialist], a copy of which will be maintained in Complainant's Official Personnel Folder [OPF]. Additionally, in response to future employment verification or similar inquiries regarding Complainant's employment with the Agency, the Agency will provide a neutral reference. Such reference will match the reference letter attached hereto and state Complainant's Period of Service, Series, Grade and Salary, and that Complainant resigned voluntarily (or retired, if appropriate) from her employment with the Agency....
g. Adjust Complainant's Fiscal Year (FY) 2009 Performance Appraisal score from 74 to 81.... In the event the Agency gives Complainant a Performance Appraisal scorer for FY 2010 and/or FY 2011, such score will be 81...
7. If the Complainant believes that the Agency has failed to comply with the terms of the Agreement, the Complainant shall notify [name], Director, NOAA Civil Rights Office, or [name], Director, Office of Civil Rights, U.S. Department of Commerce, in writing, of the alleged noncompliance....
The settlement agreement was signed by Complainant and her attorney, and various Agency officials, including the Agency's management representative, an attorney. It was effective July 15, 2010.
Thereafter, Complainant's attorney had a number of contacts with the above Agency attorney on implementation of the settlement agreement. On appeal Complainant submitted emails documenting many of these contacts, along with a related description of corresponding events, which is recounted in relevant part below.
On August 25, 2010, the Agency attorney emailed Complainant's attorney that a memo rescinding the proposal to remove was going out imminently, and he should have a copy of Complainant's electronic OPF for his review tomorrow for any negative documents.
By late August 2010, Complainant's attorney emailed the Agency attorney that he supposed they needed to follow up regarding the performance appraisals. According to Complainant, on September 8, 2010, she received the adjusted FY 2009 appraisal (October 1, 2008 to September 30, 2009), but could not use it for applying for jobs because the scores were adjusted by hand by marking through the old scores and writing in new ones. She submitted a copy of the one page appraisal summary rating sheet showing this. Another part of the appraisal indicated that she had various "deficiencies," and Complainant argued she should not have had them because she had been out of work since June 2009.
On October 26, 2010, Complainant's attorney emailed the Agency attorney asking for a clean copy of the appraisal rating sheet signed by the rating and reviewing officials and that the appraisal be revised to have no deficiencies. The Agency attorney provided the clean rating sheet the next day. It was only signed by the rating official and pay pool manager (same person, two signature lines), not by the reviewing official. The Agency never revised the appraisal to remove the deficiencies.
On December 29, 2010, Complainant's attorney emailed the Agency attorney that for her job search Complainant critically needed a current appraisal with a score of 81 with no deficiencies. It appears this referred to the FY 2010 appraisal (October 1, 2009 to September 30, 2010). After allegedly not receiving the appraisal, on January 21, 2011, Complainant's attorney emailed the Agency attorney again asking for the updated appraisal, and expressing exasperation that it was not taken care of last year and writing Complainant needed it for applying for jobs and time was of the essence. According to Complainant, she received the FY 2010 appraisal on February 2, 2011.
Complainant, through her attorney, starting by mid-October 2010, also repeatedly asked the Agency attorney for a current SF-50, stating she needed it for her job search. The Agency attorney provided it on November 2, 2010, but Complainant could not open it due to a password problem. Complainant's attorney notified the Agency attorney of this by email on December 29, 2010, and got the password the next day.
In a brief letter to the Director, Office of Civil Rights, U.S. Department of Commerce dated February 17, 2011, Complainant alleged that she was mislead into signing the settlement agreement and that the Agency breached it. On being mislead, she generally wrote the Agency withheld vital information, and on breach she generally wrote that the Agency had not acted in a timely manner.
On appeal Complainant contends that she was misled into entering the settlement agreement. She contends that with the appraisals she received on February 2, 2011, she received the two SF-50s reassigning her effective June 6, 2010, and a corresponding position description (which listed a new supervisor), and for the first time learned of her reassignment. Complainant contends that had she known a different identified person was her supervisor, a person she would have no problem working for, she seriously doubts she would have entered into the settlement agreement. Complainant also asserts that she was forced to enter into the settlement agreement. Specifically, she contends that she agreed to some of the settlement agreement only because the Agency Director, Finance Office/Comptroller (her prior first line supervisor) would stop at nothing to terminate hers. She also contends that she was badgered into agreeing that the Supervisory Human Resources Specialist would be the point of contact in providing references, and she wanted someone else.
The Agency counters that Complainant did not enter the settlement agreement under duress or coercion. It notes she was represented by counsel. The record reflects Complainant's attorney was involved in negotiating the terms of the settlement agreement.
In her appeal brief dated May 16, 2011, Complainant contends that the Supervisory Human Resources Specialist did not provide her with a letter of reference, and is aware that she was called on her behalf and did not know who she was. The Agency argues that any alleged noncompliance was promptly cured after receiving notice of the alleged noncompliance. It writes that Complainant raised the letter of reference matter for the first time in her appeal brief, which it received on May 18, 2011. It writes that upon reviewing the settlement agreement, it discovered that it did not include the letter of reference in term 3(e). It argues that it cured this alleged breach by sending Complainant the letter of reference on May 25, 2011, which Complainant received on May 25, 2011. Complainant concedes that she received the letter of reference.3
The Agency also responds that the Supervisory Human Resources Specialist attested that since July 15, 2010, she was not contacted for an employment verification or similar inquiry regarding Complainant, and other than the one she provided pursuant to the settlement agreement, was not asked to provide a letter of reference regarding Complainant. The Agency writes this is supported by an enclosed declaration by the Supervisory Human Resources Specialist dated May 18, 2011, which was not actually included in its packet.4
On appeal Complainant refers to the delay in receiving a copy of her most recent SF-50, recounted above. The Agency does not directly respond to this contention. Nevertheless, via a term by term analysis of the settlement agreement, the Agency found that none of agreed trigger events occurred which we note would result in the creation of an SF-50 had occurred.
Complainant writes on appeal that the first notice of proposed removal was rescinded and the second was to be rescinded, but she has no way of knowing if this was done or if they are still in her OPF because she has not been allowed to look at her OPF.
The Agency counters that a May 10, 2011, review of Complainant's OPF revealed no documents regarding, relating and/or referring to any disciplinary action, verbal or written, taken against Complainant, including but not limited to letters of reprimand. In support thereof the Agency wrote that it attached a declaration by the Agency attorney, which was not actually included in the Agency packet. On term 3(d) the Agency argues that a memorandum by the Director, Finance/Comptroller dated August 25, 2010, advised Complainant that the proposal to remove dated December 11, 2009, was officially rescinded. In support of this, and that any and all proposals to remove Complainant had been expunged which were in the Director's custody and control, the Agency referenced the memorandum and/or other documentation and a declaration by the Agency attorney, which were said to be attached but were not.
The Agency argues that it complied with term 3(g) of the settlement agreement by on September 8, 2009, revising Complainant's total performance score from 74 to 81. It notes that when Complainant's counsel requested a performance summary rating sheet with no cross outs, it provided one, and writes that on or about January 11, 2011, it provided Complainant with her FY 2010 appraisal with a total performance score of 81. In support of the later date, the Agency referenced an attachment which was not actually included in its packet.
ANALYSIS
Because the Commission favors the voluntary resolution of discrimination complaints, settlement agreements are not lightly set aside. 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. Cannella v. Department of Veterans Affairs, EEOC Appeal No. 01995444 (Dec. 5, 2000). Complainant has not shown she was coerced into entering the settlement agreement. It was negotiated over a period of months, and she was represented by counsel, who was involved in negotiating the settlement agreement.
Complainant also argues that the settlement agreement is not binding because the Agency negotiated in bad faith by withholding information that she was reassigned to a different supervisor in June 2010, prior to her signing of the settlement agreement in July 2010. In order to prevail on her claim, Complainant must prove that the Agency made an intentional or material misrepresentation of information. See Ruckriegel v. Department of the Army, EEOC Appeal No. 0120101357 (Aug. 10, 2010). Complainant has not met this burden. First, the record does not shed light on whether such information was intentionally withheld. Assuming Complainant was not aware of the reassignment (she stated she stopped working in June 2009), we note that by the terms of the settlement agreement, the Agency rescinded a proposed removal. Given this we find it unlikely that the paper reassignment would have much impact on a decision to enter into a settlement agreement. Complainant has not shown bad faith.5
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 (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. Dep't 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. U.S. Postal Serv., 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 29 C.F.R. �1614.504(b), an agency has 35 days from the receipt of a Complainant's allegation 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 Gibbons v. United States Postal Service, EEOC Appeal No. 01952319 (Dec. 14, 1995). Assuming without deciding that Complainant's appeal brief, which she copied to the Agency is proper notice of breach on her not receiving the letter of reference, a review of the record reveals that the Agency met this requirement within 35 days of receiving the brief. The Agency has complied with the settlement agreement on this matter.
Regarding responses to future employment verification or similar inquiries, the Agency contends that Supervisory Human Resources Specialist was not contacted by anyone to provide a response, and this was supported by an attached declaration by the Specialist. The declaration was not attached. This will be addressed on remand.
We find that Complainant has not shown the Agency breached term 3(g) of the settlement agreement. After notices by Complainant, the Agency timely provided her the adjusted FY 2009 appraisal (including a clean copy) and the FY 2010 appraisal with a summary rating of 81. While Complainant contends that narrative language about her being deficient should have been removed from the FY 2009 appraisal because she stopped working in June 2009, the settlement agreement does not address this. Complainant also argued that the rating sheet in the revised FY 2009 should have been signed by the reviewing official. Given that the unrevised FY 2009 rating appraisal sheet was not signed by the reviewing official, and the settlement agreement does not address this matter, we find that the reviewing official's signature was not required by the settlement agreement.
Complainant's request for her current SF-50 for her job search does not implicate any provision of the settlement agreement. Accordingly, the Agency did not breach the settlement agreement regarding this matter.
On expunging any negative documents from Complainant's OPF and rescinding and expunging all proposals to remove Complainant, the Agency contends on appeal this was done. Complainant wanted verification that these things occurred. The Agency stated that documentation verifying the above was submitted with its opposition to appeal packet, but it was not actually included. This will be addressed on remand.
CONCLUSION
The party's settlement agreement dated July 7, 2010, is valid and enforceable. The Agency has shown it is in compliance with portions of the settlement agreement. While the Agency argued on that it was in compliance with other portions, and that it submitted statements and documentation showing this, the statements and documentation were not included. This will be addressed in the order below.
ORDER
The Agency is ordered to take the following actions:
1. Conduct a supplemental investigation on whether the Agency complied with terms 3(c) and 3(d) of the settlement agreement; and the portion of term 3(e) of the settlement agreement regarding the letter of reference being placed in Complainant's OPF and the Supervisory Resource Specialist (or mutually agreed designee) responding to requests for employment verification or similar inquiries.
2. Provide Complainant with a copy of the supplemental investigation, and an opportunity to respond, which will be incorporated into the supplemental investigation.
3. Issue a FAD, in accordance with 29 C.F.R. � 1614.504, appealable to the EEOC, making a determination on breach.
4. The Agency shall complete the above actions within 45 calendar days after this decision becomes final.
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.
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.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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 77960, Washington, DC 20013. 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 (T0610)
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 (Z0610)
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 from the Court that the Court appoint an attorney to represent you and that the Court also 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 with the Court 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
January 16, 2013
__________________
Date
1 While the appeal was prematurely filed, it was perfected because it was pending after more than 35 days elapsed since she notified the Agency that she was claiming breach and the Agency did not issue a FAD but made argument in response to the appeal claiming there was no breach. 29 C.F.R. � 1614.504(b).
2 While Complainant was employed with the Agency, she states on appeal she was out of work since June 2009. Effective June 6, 2010, she was reassigned to the position of Supervisory Management Analysis Officer, with a duty location in Germantown, Maryland. The Agency first issued a Notification of Personnel Action Standard Form 50 (SF-50) indicating effective June 6, 2010, Complainant was reassigned to the position of Management Analyst, but then effective the same day issued a corrective SF-50 indicating the reassignment was to the position of Supervisory Management Analysis Officer.
3 The letter of reference is dated May 10, 2010. In reply to the Agency's brief, Complainant notes the age of the letter, but does not appear to allege this constitutes a breach. Should Complainant want an updated letter, she should request one from the Agency.
4 In its opposition packet, the Agency failed to include most of the attachments it stated were enclosed.
5 We also find that the settlement agreement met the requirements of the Older Workers Benefit Protection Act (OWBPA), for a knowing and voluntary waiver.
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0120112272
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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