01A24102_r
03-17-2003
Mary G. Pierce, Complainant, v. Hansford T. Johnson, Acting Secretary, Department of the Navy, Agency.
Mary G. Pierce v. Department of the Navy
01A24102
March 17, 2003
.
Mary G. Pierce,
Complainant,
v.
Hansford T. Johnson,
Acting Secretary,
Department of the Navy,
Agency.
Appeal No. 01A24102
Agency Nos. 01-65886-024; 01-65886-248
DECISION
Complainant appeals to the Commission from the agency's March 4, 2002
decision concluding that it was not in breach of the settlement agreement.
On September 17, 2001, the parties resolved complainant's complaints by
entering into a settlement agreement which provided, in pertinent part,
that complainant would receive the following:
Place Disputant on a 90-Day Performance Improvement Plan (PIP) no later
than Friday, 28 September 2001. The Agency agrees to outline in the
PIP specific areas of deficiencies in Disputant's performance and to
outline steps to improve those deficiencies. To assist the Disputant
during this improvement period the Agency shall designate three (3)
specific supervisors to provide mentoring, facilitation, and evaluation.
After the PIP is successfully completed, Disputant will receive core
training for the GS-11 level. Training must be completed no later than
17 January 2002. These courses will be held at the Naval Aviation Depot,
Jacksonville. Attached is the list of core training courses.
Upon successful completion prior to 17 January 2002 time frame of items
a and b above, and Disputant's work performance at the GS-11 level,
she will be promoted to the position of Quality Assurance Specialist,
GS-1910-11, without competition.
If additional time is needed to complete items a and b above, the PIP
timeframe may be extended; however, if items a and b above are not
completed before 17 January 2002, then Disputant must compete for the
position of Quality Assurance Specialist, GS-1910-11, level through
merit promotion.
By letter dated February 13, 2002, complainant alleged that the
agency breached the settlement agreement. Specifically, complainant
alleged that she was not mentored, facilitated and evaluated by three
specific supervisors as required by provision (a) of the agreement.
Complainant also alleged that the agency breached provisions (b) and
(d) of the agreement.
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 its March 4, 2002 decision, the agency found that three specific
supervisors were designated to assist complainant. However, the record
does not contain evidence that the three specific supervisors provided
her mentoring, facilitation, and evaluation during the improvement
period. For instance, the record does not contain any statements from
any of the three named supervisors. The remainder of the settlement
agreement is contingent upon complainant successfully completing the
improvement period. Without evidence addressing whether the three
specific supervisors provided complainant mentoring, facilitation,
and evaluation during the improvement period , the Commission is unable
to make a determination as to whether the agency is in breach of any
portion of the settlement agreement. Therefore, we shall remand the
matter so that the agency may supplement the record with evidence showing
whether the three specific supervisors provided complainant mentoring,
facilitation, and evaluation during the improvement period, as required
in provision (a) of the agreement.<1>
The agency's decision finding no breach of the settlement agreement is
VACATED and we REMAND the matter to the agency for further processing
in accordance with this decision and applicable regulations.
ORDER
The agency shall provide in the record affidavits from the three
supervisors named in the agency's March 4, 2002 decision, who purportedly
provided mentoring, facilitation, and evaluation to complainant in
compliance with provision (a) of the September 17, 2001 settlement
agreement. The affidavits should include what specific steps were
taken by the three supervisors to mentor, facilitate, and evaluate
complainant during the improvement period. Based on the foregoing, the
agency shall determine whether the agency complied with all provisions
of the September 17, 2001 settlement agreement and shall, within 30 days
of the date this decision becomes final, issue a new decision regarding
whether it has complied with the settlement agreement. A copy of the
decision must be sent 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
March 17, 2003
__________________
Date
1The agency properly referred complainant to
contact the EEO Office if she wished to pursue claims of discrimination
which she raised at the same time as she raised her breach claim.