0120112691
08-04-2011
Kathy Vochatzer, Complainant, v. Hilda L. Solis, Secretary, Department of Labor, Agency.
Kathy Vochatzer,
Complainant,
v.
Hilda L. Solis,
Secretary,
Department of Labor,
Agency.
Appeal No. 0120112691
Agency No. CRC 09-0009-28
DECISION
Complainant filed an appeal regarding her claim that the Agency is not
in compliance with the terms of the settlement agreement into which the
parties entered. See 29 C.F.R. § 1614.402; 29 C.F.R. § 1614.504(b);
and 29 C.F.R. § 1614.405.
BACKGROUND
Believing that the Agency subjected her to unlawful discrimination,
Complainant contacted an Agency EEO Counselor to initiate the EEO
complaint process. When the matter was not resolved informally,
Complainant filed a formal complaint. The matter was investigated
and Complainant, subsequently, requested a hearing before an EEOC
Administrative Judge (AJ). During the hearing process, Complainant and
the Agency engaged in settlement discussions. On February 17, 2010,
Complainant and the Agency entered into a settlement agreement to resolve
the matter. The settlement agreement provided, in pertinent part, that:
(1) The parties agree that the Agency will pay for and allow
Complainant to:
(a) attend the Certified Internal Auditor (CIA)Exam Review
Course; and
(b) take the CIA certification exam, as follows:
• Complainant will attend the four-part Institute of Internal Auditors
CIA Learning System review course offered at Brandman University,
Chapman University System in Walnut Creek, California.
• Complainant will coordinate with her immediate supervisor to
enroll in the course. In the event the course is not available at this
location or Complainant would like to take the course (one or more parts
of the course) at a different location, Complainant and her immediate
supervisor will coordinate her enrollment in another Institute of Internal
Auditors CIA Learning System review course of comparable price in or
near the San Francisco, California area. Complainant will coordinate
with her immediate supervisor in scheduling and enrolling in each part
of the course to minimize any travel expenses and any disruptions to
Complainant’s work assignments.
(2) Complainant shall complete the four-part CIA review course and
four-part exam by no later than September 30, 2011, unless she and her
immediate supervisor both agree to an extension.
(3) Complainant’s official duty station, where she physically
reports when not in travel status, remains the San Francisco Regional
Office of Audit. Administrative matters related to Complainant’s
official duty station and work site (such as but not limited to, her
physical work site, office and IT equipment, building access, employee
identification cards), will be handled by the administrative staff in
San Francisco Regional Office of Audit. Most other administrative and
personnel matters (such as, but not limited to, mid-term and annual
performance appraisals, time and attendance, travel and vouchers,
training, and performance or conduct-based issues), will be handled by
the management staff of the Dallas Regional Office of Audit.
By letter to the Agency dated March 18, 2011, Complainant alleged that
the Agency was in breach of the settlement agreement, and requested that
the Agency specifically implement its terms. Specifically, Complainant
alleged that the Agency failed to allow Complainant to attend the CIA
training within the time frame allotted in the settlement agreement.
Complainant was also informed that her other administrative and personnel
matters would be transferred to the Dallas Regional Office of Audit to
the Atlanta Regional Office of Audit in February 2011.
When the Agency failed to respond to Complainant’s claim of breach,
Complainant filed an appeal with the Commission. In response to the
appeal, the Agency indicated that Complainant and Agency officials
mutually agreed to extend the completion date of the CIA training
course and examination period to September 30, 2012. Therefore, the
Agency indicated that the only issue pending before the Commission is
Complainant’s allegation of breach of provision (3) as listed above.
The Agency noted that the reason for the transfer of Complainant from
Dallas to Atlanta for purposes of administrative and personnel matters
was based on a changing of staff in the Dallas Regional Office of Audit.
The Agency indicated that Complainant had filed her EEO compliant
against management in the San Francisco Regional Office of Audit. As a
result, the Agency physically assigned Complainant to the San Francisco
Regional Office of Audit but placed administrative and personnel
decisions in the Dallas Regional Office. The Agency indicated that
Complainant’s Supervisor (Supervisor 1) in San Francisco against whom
she alleged discrimination was to take over as the Supervisor in Dallas.
Complainant’s Dallas Supervisor (Supervisor 2) was physically located
in Atlanta and would continue to attend to Complainant’s administrative
and personnel decisions from Atlanta. Therefore, the Agency indicated
that it moved Complainant’s administrative and personnel decisions
from Dallas to avoid having Supervisor 1 involved in Complainant’s
personnel and administrative decisions.
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 (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, the only issue before the Commission is provision (3)
as listed above. The Commission notes that the parties, as required
by the settlement agreement, have agreed to extend the period for
Complainant’s CIA training and examination to September 30, 2012.
As such, the Commission shall only review Complainant’s claim of breach
regarding the assignment change of her administrative and personnel
decisions from Dallas to Atlanta. The Agency indicated that the reason
for the change was to comply with the spirit of the settlement agreement.
The Agency stated that in order to avoid having Supervisor 1 involved in
Complainant’s personnel and administrative matters, Complainant was
transferred, albeit not physically, to the Atlanta Regional Office of
Audit, so that Complainant can remain under the supervision of Supervisor
2. The Agency argued that it reassigned Complainant in order to preserve
the intent of the settlement agreement, not breach it. We note that the
Agency has not provided any evidence to support its assertion; however,
Complainant did not contest the Agency’s assertions on appeal.
Upon review, we cannot determine whether the Agency breached the
settlement agreement. However, based on the record and emails between
Complainant and management, it is not clear to the Commission that
the reason for the transfer to Atlanta was made clear to Complainant
at the time of her transfer. As such, we determine that the Agency
should provide Complainant with an offer to transfer her administrative
and personnel decision making authority to the Atlanta Regional Office
of Audit. If Complainant accepts the offer, then she should be placed
under Supervisor 2 in Atlanta. If she rejects the offer, Complainant
shall be returned to the Dallas Regional Office of Audit under Supervisor
1 who was the supervisor against whom Complainant alleged discrimination
and harassment.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, we VACATE the
Agency’s determination and REMAND the matter for further action in
accordance with the ORDER below.
ORDER (C0610)
The Agency is ordered to take the following action:
I. The Agency shall present Complainant with an offer to transfer most
of her administrative and personnel decisions to the Dallas Regional
Office of Audit within 30 calendar days.
II. Complainant shall respond to the offer within 15 calendar days of
receipt of the offer indicating her choice in light of the explanation
provided by the Agency.
III. If Complainant fails to respond, the Agency shall keep Complainant
under the Atlanta Regional Office of Audit.
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 offer was made.
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 (R0610)
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 (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
August 4, 2011
__________________
Date
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0120112691
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120112691