0120131170
05-16-2013
Karen L. DerMargosian, Complainant, v. Chuck Hagel, Secretary, Department of Defense (Defense Commissary Agency), Agency.
Karen L. DerMargosian,
Complainant,
v.
Chuck Hagel,
Secretary,
Department of Defense
(Defense Commissary Agency),
Agency.
Appeal No. 0120131170
Agency No. DECA000772011
DECISION
A review of the record reflects that on June 3, 2012, Complainant entered into a settlement agreement with the Agency. The settlement agreement provided, in relevant part, that "Complainant will remain in a LWOP (Leave Without Pay) status until the effective date of the removal (Claim (1));" and "managers will receive appropriate and available training on EEO subject maters (Claim (2))."
On February 2, 2013, Complainant wrote to the Commission alleging that the Agency had failed to comply with the terms mentioned above. Specifically, Complainant claims that she became aware that the Agency breached the settlement agreement when she received notification of a "SF 1150" being placed in her eOPF. At that time, in January 2013, she maintained that she discovered that she had been placed in an AWOL status not a LWOP status.1 With regard to Claim (2), Complainant stated that she emailed the Agency's General Counsel on December 31, 2012 to determine whether the Agency had conducted the training as required by the agreement. Complainant alleged that an Agency official did not respond to her inquiry and directed her to contact her former attorney.
In response to Complainant's appeal, the Agency issued a statement in opposition to the Commission, dated March 7, 2013, arguing, among other things, that it timely responded to Complainant and remedied any failure to comply with the terms of the settlement agreement concerning Claim (1) in a timely manner.
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).
In the instant case, we find that with regard to Claim (1), the Agency demonstrated that it acted quickly to remedy and cure the fact that Complainant was not in a LWOP status as agreed upon once it was informed. The record reveals that Complainant notified the Agency of the breach on January 17, 2013. The Agency responded via email on January 23, 2013, and demonstrated that it remedied the error in a timely manner. The Agency submitted Pay and Leave Adjustment and Corrections forms to change Complainant's status from AWOL to LWOP not only for the period required by the settlement agreement (June 4 to her date of removal) but also for the period of March 5, 2012 through June 4, 2012. Thus, we find that the Agency is in compliance with that provision of the June 3, 2012 settlement agreement.
However, with regard to Claim (2), the Agency's obligation to conduct EEO training, we find that the evidence presented by the Agency is insufficient to establish that it performed its obligations under the Settlement Agreement. The only evidence that the Agency conducted the training is an email from an Agency official stating that "I completed the training required in the [Complainant's last name] settlement." The writer lists the names of four attendees. Based upon this evidence, we find it is impossible to determine whether the Agency conducted the training specified in the settlement. The record contains no sworn affidavits regarding the date of the training, the nature of the training, the information provided to the attendees, and the length of time for the training. Further, the Agency did not provide acceptable proof of attendance, e.g., a sign-in sheet or certificates of completion of the training. Finally, we have no indication of the qualifications of the individual who claims to have provided the training in order to determine whether it was appropriate. Accordingly, we find that the Agency breached this provision 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). Because Complainant did not specify which remedy she is requesting, we order the Agency to specifically perform its obligation to provide EEO training as stated in the June 3, 2010 settlement agreement. We remind the Agency that evidence regarding the nature, length, substance, attendees, and the qualifications of the individual providing the training is material to our determination that the Agency has performed its obligations.
Accordingly, the Commission finds that the Agency did not breach Claim (1), but we do find a violation of Claim (2). The Agency will comply with the ORDER below.
ORDER
The Agency is ORDERED to undertake the following actions:
Within sixty (60) calendar days of the date this decision becomes final, the Agency shall issue a letter of determination to Complainant with appeal rights to the Commission that it has specifically perform its obligation to provide training on EEO subject maters to its managers. The Agency is required to provide 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.
A copy of the Agency's letter of determination along with copies of the supporting evidence shall be submitted to the Compliance Officer referenced below.
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), at 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
__5/16/13________________
Date
1 According to Complainant, she had been in a LWOP status from September 10, 2011 - March 10, 2012, but for some reason her status changed in March 2012 to AWOL. Complainant was removed on July 13, 2012.
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01-2013-1170
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120131170