Katrina M. White, Complainant,v.Robert M. Gates, Secretary, Department of Defense (National Defense University), Agency.

Equal Employment Opportunity CommissionFeb 2, 2007
0120062237 (E.E.O.C. Feb. 2, 2007)

0120062237

02-02-2007

Katrina M. White, Complainant, v. Robert M. Gates, Secretary, Department of Defense (National Defense University), Agency.


Katrina M. White,

Complainant,

v.

Robert M. Gates,

Secretary,

Department of Defense

(National Defense University),

Agency.

Appeal No. 01200622371

Agency No. 05DJJNDU001

DECISION

On February 15, 2006, complainant filed a timely appeal with this

Commission from a final decision (FAD) by the National Defense University

(Joint Forces Defense College) (agency) dated February 9, 2006, finding

that it was in compliance with the terms of the July 27, 2005 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.

At the time of the events at issue herein, complainant was a food service

worker (flexible) at the Joint Forces Staff College (JFSC), a part of

the National Defense University (NDU), located in Norfolk, Virginia.

In early 2005, an investigation into allegations of a hostile work

environment within the Morale, Welfare, and Recreation Department (MWR)

revealed a pattern of unprofessional, improper, and illicit activities,

primarily by the Director of MWR but including members of his staff.

Complainant was issued a letter of termination on February 28, 2005,

for participating in these activities and providing untruthful answers

to questions about them.

On May 10, 2005, complainant filed a formal complaint based on

race (Black) and reprisal for prior EEO activity with regard to

her termination. Thereafter, the parties entered into a settlement

agreement dated July 27, 2005 (SA), which provided, in pertinent part,

that the agency agreed to take the following action, at Paragraph 3:

(a) to strike 'involuntary termination' and insert 'voluntary

resignation' for personal reasons, including amendment to all personnel

forms within 30 days of the date of the SA;

(b) "to allow complainant to apply for other NAF positions not

located at the JFSC;" and

(c) to rescind the letter that prohibited her from entering the JFSC

and Naval Support Activity, including access to PUB1 at JFSC.2

By letter to the agency dated January 23, 2006, complainant alleged

that the agency was in breach of the SA. She explained that, when

she attempted to apply for another NAF position at another facility

(Ft. Breezy), she was told that she was on a 'do not hire list.'

She stated that she called the agency, which later informed her that it

had contacted the 'region' to take her name off any such list. Later,

however, she received a letter from 'CO NHR,' stating that the Navy

Region Mid-Atlantic NAF Human Resources Office had acquired independent

knowledge about her from its investigation at the JFSC from which it

had determined that she was not suitable for employment. Although she

requested a review, it was denied, and she learned that her name remained

on the do not hire list.

According to the agency's February 9, 2006, response to complainant

and its brief, the agency asserted that it had complied with the SA.

Specifically, as to part (a) of the SA, the agency stated that it

"communicated with [the] Human Resources Office, Commander, Navy

Region Mid-Atlantic" to remove any reference to involuntary termination

from complainant's personnel records, and replace that language with

'voluntary resignation' as agreed." Letter, p. 2. However, there is

no representation that Navy Region ever took the action that the agency

promised in the SA.

As to part (b), the agency stated that its communication to Navy Region

"permitted you to apply for other NAF positions located outside of the

JFSC." It is unclear how the agency's communication exactly 'permitted'

complainant to apply for other positions. The agency also stated that

"Commander, Navy Region Mid-Atlantic, is a separate Department of Defense

organization and they are responsible for making their own determinations

regarding suitability for employment...agency has no control over the

hiring decisions of other organizations." Id.

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. Department of Defense,

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. 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 O 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 (5th Cir. 1984).

In the instant case, at issue are the two promises made by the agency in

(a) and (b). First, the agency agreed to amend all personnel documents

to reflect a voluntary resignation. While the agency stated that it

contacted the Navy Region, it is not clear why it did so, what connection

the agency, i.e., JFSC, has with Navy Region, and if the Navy Region

took the action guaranteed by the agency.3 Because the JFSC/NDU entered

into the SA, it is binding on the JFSC/NDU, and it is its responsibility

to ensure compliance. Merely contacting another organization, without

further explanation, is not sufficient to assert compliance. See 29

C.F.R. � 1614.504(a).

In (b), the agency agreed to allow complainant to apply for other NAF

positions. Because complainant's name remains on the not-hire list,

she cannot apply for other NAF positions. Unless persuaded otherwise,

we believe this provision may be beyond the agency's ability to effect

and possibly void for lack of consideration. If, as appears to be the

case, the agency on its own cannot "allow" complainant to apply for NAF

positions, it may not have entered into the SA in good faith. Generally,

the adequacy or fairness of the consideration in a settlement agreement

is not at issue, as long as some legal detriment is incurred as part of

the bargain. However, when one of the contracting parties incurs no

legal detriment, the settlement agreement will be set aside for lack

of consideration. See MacNair v. United States Postal Service, EEOC

01964032 (July 1, 1997); Juhola v. Department of the Army, EEOC Appeal

No. 01934032 (June 30, 1994) (citing Terracine v. Department of Health

and Human Services, EEOC Request No. 05910888 (March 11, 1992)).

Because of these questions, the Commission finds that it is not able

to make a reasoned determination as to whether there has been a breach

of the SA. The final agency decision did not adequately address these

issues, and the Commission cannot determine whether the agency breached

the SA without additional information. Accordingly, the case is remanded

to the agency for a supplemental investigation to respond to the questions

raised in this decision. 29 C.F.R. � 1614.504(c).

CONCLUSION

According, the agency's determination that it did not breach the SA

is VACATED. This matter is returned to the agency for a supplemental

investigation, and the agency is directed to comply with the Order below.

ORDER TO SUPPLEMENT RECORD (B0900)

Within ninety (90) days of the date this decision becomes final, the

agency shall conduct a supplemental investigation with regard to its

ability to make, enforce, and comply with the SA, which shall include

the matters raised above. Upon completion of the investigation, the

agency must provide the complainant with a copy of the supplemental

record and its determination of whether it is in breach of the SA.

The agency shall afford complainant a right of appeal to the Commission,

as is set out in 29 C.F.R. � 1614.504.

In accordance with Equal Employment Opportunity Management Directive for

29 C.F.R. Part 1614 (EEO MD-110), 9-23 (November 9, 1999), the agency

shall give priority to this remanded case in order to comply with the

time frames contained in this Order. The Office of Federal Operations

will issue sanctions against agencies when it determines that agencies

are not making reasonable efforts to comply with a Commission order to

investigate a complaint.

Compliance with the Commission(s order is mandatory. The agency shall

submit its compliance report of the completion of all ordered action

within the time frame set forth above. 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 the above requested documentation,

and the agency must send a copy of all submissions to the complainant.

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

____ 2-2-07______________

Date

1 Due to a new data system, your case has been re-designated with the

above-referenced appeal number.

2 With her termination, complainant was prohibited from entry to

the facility, but the agency agreed to modify the exclusion to allow

complainant to visit her sister, who lived or worked at the facility.

To the extent that the agency complied with this provision, it was not

addressed on appeal and will not be addressed in this decision.

3 In addition, we remind the agency that acronyms used by it should

be defined; also, the agency should be aware that relationships among

Department of Defense entities are not transparent, notwithstanding

reference to agency websites.

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0120062237

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P. O. Box 19848

Washington, D.C. 20036

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0120062237