01A11106_r
08-15-2002
Margaret M. Johnson, Complainant, v. Gordon R. England, Secretary, Department of the Navy, Agency.
Margaret M. Johnson v. Department of the Navy
01A11106
August 15, 2002
.
Margaret M. Johnson,
Complainant,
v.
Gordon R. England,
Secretary,
Department of the Navy,
Agency.
Appeal No. 01A11106
DECISION
Complainant filed a timely appeal with this Commission from a final
decision by the agency dated September 14, 2000, finding that it was in
compliance with the terms of the September 1, 1999 settlement agreement
into which the parties entered.
The settlement agreement provided, in pertinent part, that:
[1] Respondent will publish in writing a schedule/listing of acting
Production Managers who will serve in his absen[ce]. This listing will
apply to Department Heads who work for [Person A].
[2] The Respondent agrees to forward the revised position description
for Hazardous Waste Disposal Manager to the personnel office for review
and clarification.
[3] In-House work assignments made at the work acceptance meetings will
be reviewed by the Environmental Department prior to the beginning of the
work to determine if the work involves any environmental impact. This
initial interview by the Environmental Department will be accomplished
within 21 calendar days of the Environmental Department's receipt of
the work assignments.
[4] The respondent will direct the heads of departments 500 and 900
to develop a plan of action for improving professional relationships
between the departments. This plan of action will be completed and
mutually agreed upon no later than 1 November 1999.
[5] Each department head may be accompanied to the meetings to develop the
plan of action by one additional employee of their respective department.
[6] The mutually agreed upon plan of action will then be discussed in
a meeting between the department heads of Code 500 and Code 900 and
[Person A].
[7] An acceptable performance rating will be given to the department
heads of Code 500 and Code 900 for the period ending 30 September 1999.
[8] The plan of action, as approved by [Person A], will be the basis for
rating the performance of the two department heads of Code 500 and Code
900 commencing 1 October 1999.
By letter to the agency dated February 24, 2000, complainant alleged
that the agency was in breach of the settlement agreement.
In its September 14, 2000 decision, the agency concluded that it did
not breach the settlement agreement. The agency noted that Person A
stated that a meeting was held on September 3, 1999, to discuss work flow
procedures to ensure a professional working relationship between codes
500 and 900. The agency stated the meeting was attended by Person A,
complainant, Person B and Person C. The agency noted that according to
Person A and Person B work flow processes were discussed and established
on September 3, 1999. The agency stated that the MAXIMO system was
revised to ensure work assigned to PWC can be reviewed by the Code 900
for environmental compliance.
On appeal, complainant alleges that six of the eight terms of the
settlement agreement have been breached. Specifically, complainant
states that Person A breached paragraph 1 requiring him to publish
in writing a schedule of acting Production Managers to serve in his
absence. Complainant states that although Person A designated in writing
individuals who would act in his absence, Person A would call Person
B to represent him at meetings during the month in which complainant
was designating on his behalf. Thus, complainant claims that although
Person A provided a written list, she argues it was a facade as she was
not allowed to act in Person A's absence.
Complainant also argues that the agency breached paragraph 2 of the
agreement requiring Person A to forward the revised position description
for Hazardous Waste Disposal Management to the personnel office for review
and classification. Complainant states that although Person A forwarded
the position description, her position was not reclassified to a GS-13
and thus, she claims she is being subjected to disparate treatment.
Additionally, complainant alleges that the agency breached paragraph
4 requiring Person A to direct the heads of departments 500 and 900 to
develop a plan of action for improving the professional relationships
between the departments and to mutually agree upon and complete the plan
of action by November 1, 1999. Complainant notes that Person A sent an
e-mail on September 3, 1999, stating that based on a previous meeting
regarding the process flow of the TS-1 and the 21 day time frame, he
is directing Codes 500 and 900 to set up meetings to make this happen
in a professional manner. Complainant notes that the e-mail further
stated that when both are satisfied that the process will flow in an
orderly fashion, he will call the appropriate people back together for
a meeting and both sides can present the process. Complainant alleges
that these meetings never occurred. Complainant states that she sent an
e-mail to Person B and a copy to Person A in January 2000 requesting the
meetings mentioned in the September 3, 1999 e-mail. Complainant states
that she received a response from Person B stating that a meeting was
not necessary. Complainant explains that she then contacted Person A
and received his response on February 7, 2000, which stated that based
on a meeting with himself, complainant, Person A and Person B, the CSR
department set up MAXIMO to enable Code 900 to query all work request and
determine if environmental planning is required before the work starts.
Complainant claims that this meeting satisfied only paragraph 3 and not
paragraph 4 of the agreement.
Complainant alleges that the agency breached paragraph 5 stating that
each department head may be accompanied to meetings to develop the plan
of action by one additional employee of their respective departments.
Complainant states that the agency breached paragraph 6 which stated that
the mutually agreed upon plan of action will be discussed in a meeting
between the department heads of Code 500 and Code 900 and Person A.
Complainant claims that the agency breached paragraph 8 stating that the
plan of action, as approved by Person A, will be the basis for rating the
performance of the department heads of Code 500 and Code 900 commencing
October 1, 1999. Complainant claims that she was not received a copy
of the plan of action nor were her performance standards set and she
states that she continues to operate without established standards.
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 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 present case, the Commission is unable to determine whether the
agency breached the September 1, 1999 settlement agreement. With regard
to complainant's claim that the agency breached paragraphs 1 and 2,
we note that the agency failed to address these allegations of breach
in its final decision. With regard to the allegations that the agency
breached paragraphs 4, 5, and 6 we find that despite the agency's
contentions that a September 3, 1999 meeting was held to discuss and
establish work flow processes between Codes 500 and 900, and that
a plan of action was established to improve the work flow processes
between the two codes, the record does not contain sufficient evidence
to support the agency's contentions. We note that the record does not
contain statements from the attendees at this or subsequent meetings or
evidence that a plan of action was established. Further, we note that on
appeal, complainant states that the meeting held on September 3, 1999,
satisfied only paragraph 3 of the agreement and not paragraphs 4, 5,
and 6. Finally, we note that the agency did not address complainant's
claim that it breached paragraph 8 requiring the plan of action, as
approved by Person A, to be the basis for rating the performance of the
two department heads of Codes 500 and 900, beginning October 1, 1999.
Accordingly, the agency's final decision is VACATED and the matter is
REMANDED for further processing in accordance with the Order below.
ORDER
The agency shall supplement the record with documentation showing
whether it has complied with paragraphs (1), (2), (4), (5), (6), and
(8) of the September 1, 1999 settlement agreement. Within 30 days of
the date this decision becomes final, the agency shall issue a decision
on whether the agency breached the above mentioned paragraphs of the
settlement agreement. A copy of the decision must be submitted 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
August 15, 2002
__________________
Date