01A12481_r
06-20-2002
Miriam L. McCarty, Complainant, v. Donald H. Rumsfeld, Secretary, Department of Defense, (Defense Finance & Accounting Service), Agency.
Miriam L. McCarty v. Defense Finance & Accounting Service
01A12481
June 20, 2002
.
Miriam L. McCarty,
Complainant,
v.
Donald H. Rumsfeld,
Secretary,
Department of Defense,
(Defense Finance & Accounting Service),
Agency.
Appeal No. 01A12481
Agency No. DFASPSOIN-003
DECISION
Complainant filed an appeal with this Commission concerning the agency's
compliance with the terms of an October 12, 2000 settlement agreement
executed by the parties. The Commission accepts the appeal. See 29
C.F.R. � 1614.402; 29 C.F.R. � 1614.504(b); and 29 C.F.R. � 1614.405.
The settlement agreement provides, in pertinent part, that:
Management will put in place standardized performance plans for DFAS
employees in the Regional Service Center that includes a critical element
on customer service as well as put in place a recognition program that
supports those performance expectations by the end of the calendar
year 2000.
The record reflects that in e-mail communications to a certain EEO
official, dated from January 3, 2001 to February 7, 2001, complainant
made numerous requests for verification that the above actions had
been completed by the agency as of December 31, 2000. In response,
complainant ultimately received an e-mail communication notifying her
that the employees in the Regional Service Center had received their
performance plans. In her February 7, 2001 e-mail, complainant indicated
that she was dissatisfied with that response, and stated that it failed
to verify completion of the above actions. Complainant further indicated
that she suspected the agency was stalling her because it had not complied
with the settlement agreement.
On February 10, 2001, complainant filed her appeal with the Commission.
In her statement, complainant indicates that she first contacted the
agency on November 28, 2000, regarding its compliance, but received
no reply. Complainant then describes the various e-mails thereafter
exchanged between herself and the EEO office, culminating in the
February 7, 2001 e-mail. In responding to complainant's appeal,
the agency submits copies of the settlement agreement and the e-mail
communications, dated from January 3, 2001 to February 7, 2001, as well
as the record associated with complainant's underlying complaint.
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 determines that complainant's e-mail communications
to the EEO Office, over the course of more than a month requesting,
but not receiving, proof demonstrating compliance with the above
referenced provision, constitute a claim of breach. Moreover, we find
that complainant properly filed an appeal with this Commission given
the agency's repeated failures to provide the requested verification.
See 29 C.F.R. � 1614.504(b).
After review, we find that the agency failed to provide any evidence to
the Commission to demonstrate its compliance with the above referenced
provision. Specifically, we find that the provision obligates the
agency to amend the standardized performance plans for Regional Service
Center employees to include a critical element for �customer service.�
Additionally, the provision requires the agency to implement a recognition
program associated with the performance plan elements. Moreover,
the provision mandates that both items be accomplished by the end of
the year 2000. However, the record before the Commission is devoid of
evidence demonstrating that the agency satisfied any of these obligations.
Therefore, absent this evidence, we find that the agency failed to comply
with the settlement agreement as claimed by complainant.
Accordingly, we REVERSE the agency determination of compliance with the
settlement agreement, and we REMAND the case to the agency to undertake
actions to specifically implement the above referenced provision, as
more fully specified in the ORDER below.
ORDER
The agency is ORDERED to take the following action:
1. Within forty-five (45) calendar days of the date of this decision,
the agency must provide complainant with copies of official standardized
performance plans for each type of position encumbered at the Regional
Service Center, amended to include �customer service� as a critical
element; the agency shall obtain and provide to complainant a sworn
affidavit from the proper agency official indicating when the amended
performance plans were distributed to Regional Service Center employees;
and the agency must provide complainant with a copy of an employee
recognition program which is based on the performance plan elements,
to include the dates of dissemination and implementation of the program.
Copies of the official standardized performance plans; the affidavit
from the proper agency official; and a copy of an employee recognition
program, as herein identified, must be sent to the Compliance Officer
as referenced below.
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
June 20, 2002
__________________
Date