01993158
07-06-2000
Shirlee A. Browning, Complainant, v. F. Whitten Peters, Secretary, Department of the Air Force, Agency.
Shirlee A. Browning, )
Complainant, )
)
)
v. ) Appeal No. 01993158
) Agency No. 5BOM98005
)
F. Whitten Peters, )
Secretary, )
Department of the Air Force, )
Agency. )
______________________________)
DECISION
Complainant timely appealed the agency's decision not to reinstate
her complaint of unlawful employment discrimination that the parties
had settled.<1> See 64 Fed. Reg. 37,644, 37,659-37,660 (1999) (to
be codified and hereinafter referred to as 29 C.F.R. � 1614.402(a),
� 1614.405, and � 1614.504).
The record indicates that complainant, an Operation's Clerk in the
agency's Grissom Club, filed her complaint on October 16, 1998, alleging
that her work hours were reduced to 3 days a week, Monday, Tuesday,
and Wednesday. Complainant also alleged that she was subjected to a
hostile work environment by her supervisor and the supervisor changed
her work schedule to suit the supervisor's needs without consulting her.
Thereafter, on December 15, 1998, the parties entered into a settlement
agreement, which provided, in part, that:
2.b. Complainant will be scheduled for her three (3) workdays on Monday
through Friday, usually on Monday, Tuesday, and Wednesday. Complainant
will also work the alternative UTA each month in addition to these 3
days each week. If the club becomes financially unstable or there is
not a need for her services as scheduled above, and the need to cut
employees hours arises, complainant will be apprized of the situation
and be promptly advised of any decisions that affect her schedule.
Both parties recognize that this schedule may not always be the case,
particularly if the end of month closeout falls at end of a week or if
the parties are trying to accommodate the workload or schedule changes
for each other. Complainant's supervisor will continue to post the
schedule 30 days in advance, and will let complainant look at any changes
prior to posting it on the wall.
2.c. The supervisor and complainant will make every effort to meet for
a minimum of 30 minutes each week on the first day of each week they
work together. The supervisor will share changes that she has become
aware of or other pertinent information to complainant. Complainant will
ask questions about the changes and participate actively in the exchange
of information. If a meeting is not held as planned, complainant may
request a meeting be scheduled.
On January 30, 1999, complainant alleged that the agency breached
paragraphs 2.b and 2.c of the settlement agreement. Specifically,
complainant indicated that she was denied her 3-day workweek and her
supervisor failed to apprize of her schedule change. Complainant also
indicated that the supervisor failed to make any efforts to meet with
her for a minimum of 30 minutes each week. In her letter dated February
17, 1999, complainant stated that she was denied 3 days of work for the
weeks of January 19 - 23, 1999, and February 16 - 20, 1999.
By letter dated February 19, 1999, the agency stated that on December 14,
1998, complainant was given the January 1999 schedule. At that time,
employees were erroneously scheduled to work on January 18, 1999,
which was a holiday. The mistake was discovered on January 8, 1999,
when the schedule was transferred to a computer system. This change
was not discussed during the meeting between complainant and her
supervisor during the week of January 4 - 8, 1999. With regard to 2.c
of the settlement agreement, the agency indicated that the supervisor,
informally, met with complainant on a weekly basis, and did not keep a
record of the specific amount of time.
On appeal, complainant states that her supervisor changed her work
schedule of Tuesday, March 30, 1999, to Friday, April 2, 1999, to
support the Grissom Club with a special supper, which indicates that
the supervisor only allows her to work when it would be a benefit to
the agency, regardless of the agreement. Complainant also indicates
that Monday meetings, described in 2.c of the settlement agreement,
are becoming a series of disciplinary sessions.
In response to complainant's appeal, the agency does not raise any new
contentions.
EEOC Regulation 29 C.F.R. � 1614.504 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.
Upon review, the Commission finds that the agency failed to comply with
the terms of the settlement agreement at issue. The settlement agreement,
specifically, provides that if there is no need for complainant's
services as scheduled, complainant will be promptly advised of any
decisions that affect her schedule. However, the agency clearly indicated
that complainant was not advised of her January 1999 schedule change.
The settlement agreement also provides that complainant and her supervisor
will make every effort to meet for a minimum of 30 minutes each week
on the first day of each week. Complainant alleged that her supervisor
failed to comply with this provision, and the agency failed to provide
any evidence to prove the matter otherwise. Accordingly, the agency's
decision finding no breach of the settlement agreement is REVERSED.
The agency is Ordered, as stated below, to resume the processing of
complainant's complaint.
ORDER
The agency, within thirty (30) calendar days of the date this decision
becomes final, is ORDERED to reinstate complainant's complaint and to
resume processing such from the point processing ceased. The agency
shall notify complainant that it has resumed processing her complaint.
A copy of the agency's letter to complainant indicating reinstatement
of her complaint for further processing must be sent 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:
July 6, 2000
DATE
Carlton
M.
Hadden,
Acting
Director
Office of Federal Operations
1On 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.