01a01364
06-22-2000
Kevin J. Hennelly, Complainant, v. William S. Cohen, Secretary, Department of Defense, (Defense Commissary Agency), Agency.
Kevin J. Hennelly, )
Complainant, )
)
)
v. ) Appeal No. 01A01364
) Agency Nos. 97-LE-KH01
) 98-LE-KH01
William S. Cohen, )
Secretary, )
Department of Defense, )
(Defense Commissary Agency), )
Agency. )
______________________________)
DECISION
The record indicates that on June 17, 1999, the parties entered into a
settlement agreement resolving complainant's complaints, which provided,
in pertinent part, that:
The agency will make reasonable attempts to provide conflict resolution
training for all Human Resources supervisors and managers within 90
calendar days of the settlement agreement. Both sides recognize that
due to contracting and other contingencies, training may occur after 90
calendar days.
The Executive Director for Support (EDS), DeCA, will fund complainant's
enrollment into personal conflict resolution counseling and will make
reasonable efforts to assist him in locating said training course.
If such a course is available, enrollment will be accomplished within
90 calendar days from the settlement agreement. Complainant shall
not enroll in any course until funding has been approved by the EDS.
Complainant will enroll in and complete the identified training.
If complainant is not disciplined for the same or similar misconduct that
is currently a matter of record between the parties for a three month
period of time from the settlement agreement, or upon completion of the
counseling noted in the foregoing paragraph, whichever occurs first, the
one-day suspension, dated October 6, 1997, and the five-day suspension,
dated August 24, 1998, will be rescinded and all records of such actions
will be expunged. Complainant will receive back pay and benefits for
the one day and five day suspension periods upon successful completion
of the six-month period.
The agency will pay complainant the sum of $500.00 in compensation.
This amount is separate and distinct from any back pay described in the
foregoing paragraph.
By letter dated September 28, 1999, complainant alleged that the agency
breached the settlement agreement.
On October 27, 1999, the agency stated that it complied with the terms
of the settlement agreement. Specifically, the agency indicated that
it asked the Human Resources Business Unit: to expunge all records
concerning the one-day suspension dated October 6, 1997, and the five-day
suspension dated August 24, 1998; and to provide back pay and benefits
due to complainant as a result of the rescission of those suspensions.
The agency also indicated that the SF-50s reflected that these personnel
actions were implemented with an effective date of October 14, 1999.
The agency, however, failed to include the SF-50s in the record.
The agency stated that one of four Human Resources Directorate
managers/supervisors completed conflict resolution training and plans
were in place for the remaining to take a training course in �conflict
resolution.� With regard to the $500.00 payment, the agency indicated
that this payment was not made to complainant because it was contingent
upon complainant participating in �conflict resolution counseling.�
The agency stated that since complainant did not participate in such
counseling, he was not paid $500.00. With regard to paragraph 2 of
the settlement agreement, the agency stated that although complainant
identified some conflict resolution �training,� it was not EDS' intent
for complainant to attend a �training� course, rather �counseling.�
On appeal, complainant contends that he did not receive any back pay nor
benefits for the suspensions at issue and he did not receive $500.00.
Complainant also indicates that the agency violated paragraph 2 of
the settlement agreement, when he was not allowed to attend �conflict
resolution training� he requested on June 30, 1999. Complainant,
specifically, requests that the agency fully implement the terms of the
settlement agreement.
Volume 64 Fed. Reg. 37,644, 37,660 (1999)(to be codified and hereinafter
referred to as 29 C.F.R. �1614.504(b))<1> provides that if the complainant
believes that the agency failed to comply with the terms of a settlement
agreement, the complainant should notify the Director of Equal Employment
Opportunity, in writing, of the alleged noncompliance with the settlement
agreement, within thirty (30) days of when the complainant knew or should
have known of the alleged noncompliance. The complainant may request that
the terms of the settlement agreement be specifically implemented or,
alternatively, that the complaint be reinstated for further processing
from the point processing ceased.
The agency shall resolve the matter and respond to the complainant,
in writing. If the agency has not responded to the complainant, in
writing, or if the complainant is not satisfied with the agency's attempt
to resolve the matter, the complainant may appeal to the Commission for
a determination as to whether the agency has complied with the terms of
the settlement agreement or final decision.
The Commission has 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, and not some unexpressed intention, that
controls the contract's construction. Eggleston v. Department of Veterans
Affairs, EEOC Request No. 05900795 (August 23, 1990). In addition, the
Commission generally follows the rule that if a 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 v. Building Engineering Services,
730 F.2d 377 (5th Cir. 1984). The Commission has followed this rule
when interpreting settlement agreements. The Commission's policy in
this regard is based on the premise that the face of the agreement best
reflects the understanding of the parties.
After a review of the record, the Commission finds that the agency
failed to comply with the terms of the settlement agreement. Although
the agency contended that it complied with paragraphs 1 and 3 of the
settlement agreement, it failed to provide any evidence in the record to
support its contentions, i.e., any documentation showing that a Human
Resources Directorate manager/supervisor completed conflict resolution
training, the suspensions at issue were expunged, or complainant was
paid back pay and benefits for the subject suspensions. On appeal,
complainant states that he was not paid for back pay and benefits for
his suspensions at issue under paragraph 3 of the settlement agreement.
With regard to paragraph 2 of the settlement agreement, the agency
stated that EDS' intended for complainant to attend a personal conflict
resolution �training� course, rather than �counseling.� However,
after a review of the settlement agreement, the Commission finds that
it does not specifically provide for �counseling,� instead it provides
for �training� and/or �counseling� interchangeably as long as such course
concerns personal conflict resolution. On appeal, complainant provides a
copy of his June 30, 1999 e-mail to the agency requesting such training.
However, EDS failed to fund complainant's enrollment into such training
course under the terms of the settlement agreement. Furthermore,
the settlement agreement does not provide that $500.00 is contingent
upon complainant's participation in conflict resolution counseling.
Based on the foregoing, the Commission finds that the agency breached
the settlement agreement. Accordingly, the agency's decision finding no
breach of the settlement agreement is REVERSED and the case is REMANDED
to the agency for implementation of the agreement.
ORDER
The agency is ORDERED to specifically enforce the June 17, 1999
settlement agreement. The agency, within thirty (30) calendar days of
the date this decision becomes final, shall provide documentation of the
specific enforcement of the subject agreement to the Compliance Officer
as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K1199)
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 64
Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter
referred to as 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)(Supp. V 1993). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 64 Fed. Reg. 37,644, 37,659 (1999)
(to be codified and hereinafter referred to as 29 C.F.R. � 1614.409).
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION
(R0400)
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:
June 22, 2000
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
1 On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at WWW.EEOC.GOV.