Judy Shafer, Complainant,v.Gale A. Norton, Secretary, Department of the Interior, Agency.

Equal Employment Opportunity CommissionMar 25, 2005
01a44461 (E.E.O.C. Mar. 25, 2005)

01a44461

03-25-2005

Judy Shafer, Complainant, v. Gale A. Norton, Secretary, Department of the Interior, Agency.


Judy Shafer v. Department of the Interior

01A44461

March 25, 2005

.

Judy Shafer,

Complainant,

v.

Gale A. Norton,

Secretary,

Department of the Interior,

Agency.

Appeal No. 01A44461 Agency No. FNP-2002-101

DECISION

The record reveals that on February 7, 2003, complainant and the agency

entered into a settlement agreement regarding complainant's EEO complaint.

The settlement provided in pertinent part as follows:

E. The Agency agrees to detail the Employee for one year to the

Washington, D.C. area to a position in the National Park Service

Office of Policy. At the end of the one-year detail the Agency will

locate another position for the Employee within the Southeast Region

of the National Park Service, not to include the U.S. Virgin Islands.

The parties agree that at the end of the one-year detail the Agency is

not obligated to extend the detail or to locate a position outside of the

Southeast Region. If another position is not found after the one year

detail, the Agency will guarantee the Employee a position in the Southeast

Region, excluding the Virgin Islands, at the Employee's same grade.

. . . .

The Agency agrees that the Employee will receive appropriate relocation

and storage expenses in accordance with applicable statutes and

regulations.

By letter dated April 2, 2004, complainant informed the agency that it had

breached the settlement agreement. Complainant stated that the agency

had not paid extended storage fees for her household goods and had not

provided her with sufficient protection from a hostile work environment.

With regard to her household goods, complainant stated that during

the mediation of her complaint, the Acting Regional Director verbally

agreed to pay for the extended storage of some of her household goods.

According to complainant, the agency refused to pay for her storage

costs after she moved from St. Thomas, Virgin Islands to Washington, D.C.

As for a hostile work environment, complainant stated that pursuant to

the settlement agreement, she was to be provided a detail in the Office

of Policy in Washington, D.C., away from the direct supervision of the

Acting Regional Director. Complainant claimed that on March 4, 2004,

the Acting Regional Director threatened to adversely affect her job

security and prospects for continued reassignment.

By decision dated June 4, 2004, the agency determined that it had

not breached the settlement agreement. With regard to complainant's

relocation and storage expenses, the agency stated that it paid

$11,260.40. The agency stated that this sum included $1,134.00 in

storage fees for a period of ninety days. The agency noted that in its

letter dated September 16, 2003, it denied complainant's request for an

additional 90 days of temporary storage because it believed adequate

housing exists for employees to locate suitable housing within the 90

day period that complainant was allowed storage. The agency stated that

Federal Travel Regulation, Chapter 302-7.8 provides that an additional

90 days may be authorized by the designated agency official. However,

the agency noted that the Regulation does not state that the extended

storage period would automatically be approved. As for complainant's

claim that she was not provided with sufficient protection from a hostile

work environment, the agency determined that this is a new issue that

must be brought to the attention of an EEO Counselor. The agency stated

that it has fully implemented the settlement agreement.

On appeal, complainant contends that the agency has not paid any storage

fees associated with her temporary change of station. According to

complainant, the agency has owed the storage company $1,387.14 since June

2003. Complainant also seeks reimbursement for the storage fees she has

paid from June 2, 2003 through June 30, 2004 in the amount of $55,094.

Complainant further claims that the agency has not provided her with

a permanent position of record. Complainant argues that the agency

disclosed �future EO complaint information� unrelated to the instant

appeal, and has thus jeopardized and biased any future action she may

have with regard to another EEO complaint.

In response, the agency acknowledges that it breached the settlement

agreement with regard to the payment of complainant's storage fees for

the 90 day period of March 2, 2003 - June 3, 2003. The agency requests

that this matter be remanded in light of the breach.

The Commission has consistently held that settlement agreements are

contracts between the complainant and the agency, and 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, 381 (5th Cir. 1984).

The Commission finds that the agency breached provision I of the

settlement agreement that addresses the payment of appropriate storage

expenses. The agency acknowledged that it failed to pay the storage

costs for the period of March 2, 2003 - June 3, 2003. The record

contains an invoice from the storage company for $1,387.14 in storage

costs that encompasses the period of March 5, 2003 - June 2, 2003.

As for the remaining storage costs sought by complainant, we observe

that the settlement agreement provided that complainant would receive

appropriate relocation and storage expenses in accordance with applicable

statutes and regulations. The pertinent regulation states:

The initial period of temporary storage at Government expense shall not

exceed 90 days in connection with any authorized HHG shipment. . . .

However, upon your written request, an additional 90 days may be

authorized by the designated agency official. In no case may the maximum

time limit for temporary storage exceed 180 days.

In light of the fact that this provision does not guarantee that a request

for extended storage costs will be approved, we reject complainant's

contention that the agency was obligated under the settlement agreement

to pay for storage costs beyond the initial 90 days. Complainant claims

that the Acting Regional Director verbally agreed to extended coverage of

the storage expenses, but there is no evidence of such an agreement in the

settlement agreement or in any documentation submitted by complainant.

There is no indication that the agency has paid the storage company

or complainant for the storage costs from March 5, 2003 - June 2,

2003. Therefore, we remand the matter so that the agency may pay for

complainant's storage fees for the initial 90 days of storage.

As for complainant's claim that she has not received a permanent position

of record, we observe that the settlement agreement provided that at the

end of complainant's one year detail, the agency would locate another

position for her within the Southeast Region of the National Park Service,

not to include the U.S. Virgin Islands. The agreement further provides

that if another position is not found after the one year detail, the

agency will guarantee complainant a position in the Southeast Region,

excluding the Virgin Islands, at complainant's same grade. We observe

that in its final action, the agency stated that complainant received the

one year detail, but it did not indicate whether it provided complainant

with a position after the March 8, 2004 expiration of the detail.

Upon remand, the agency will need to address whether it has complied

with this term of the settlement agreement.

As for complainant's claim that she has been subjected to a hostile work

environment, we note that claims of subsequent discrimination should

be processed as separate complaints. See 29 C.F.R. � 1614.504(c).

Furthermore, it appears that complainant has already filed a complaint

about the alleged hostile work environment. The agency correctly advised

complainant to seek EEO counseling regarding the alleged discrimination

if she had not already done so.

Finally, complainant has not provided specific examples of how the agency

has disclosed future EEO complaint information. We therefore find that

no evidence has been presented on this particular point to establish

that a specific provision of the settlement agreement was breached.

The agency's decision finding no breach of provision I of the February 7,

2003 settlement agreement is REVERSED. Additionally, the agency decision

is VACATED with regard to provision E of the settlement agreement.. We

REMAND the matter back to the agency for further action pursuant to the

Order herein.

ORDER

Within 30 days of the date this decision becomes final, the agency shall

pay the relevant storage company the amount due for the initial 90 days

that costs were incurred. Proof of payment shall be sent to complainant

and the Compliance Officer referenced herein. The agency shall also

determine whether it has complied with that portion of provision E of the

settlement agreement that refers to complainant receiving a position in

the Southeast Region upon completion of her one year detail. The agency

shall supplement the record with evidence showing what complainant's

employment status was with the agency upon completion of her one-year

detail. Within 30 days of the date this decision becomes final, the

agency shall issue a new decision determining whether it has complied

with provision E of the settlement agreement. A copy of the agency's

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

March 25, 2005

__________________

Date