0120093756_and_0120093748
05-06-2011
Stephen P. Poitra & Eugene J. Ryan, Complainants, v. Kathleen Sebelius, Secretary, Department of Health and Human Services, (Indian Health Service) Agency.
Stephen P. Poitra & Eugene J. Ryan,
Complainants,
v.
Kathleen Sebelius,
Secretary,
Department of Health and Human Services,
(Indian Health Service)
Agency.
Appeal Nos. 0120093748 & 0120093756
Agency Nos. HHS-IHS-0239-2007 & HHS-IHS-0240-2007
DECISION
Complainant 1 and Complainant 2 filed timely appeals with this Commission
from their final decision (FAD) by the Agency dated August 12, 2009
and August 14, 2009, finding that it was in compliance with the terms
of the settlement agreement into which the parties entered. See 29
C.F.R. � 1614.402; 29 C.F.R. � 1614.504(b); and 29 C.F.R. � 1614.405.
We consolidate these appeals for joint processing pursuant to 29 C.F.R. �
1614.606.
BACKGROUND
At the time of events giving rise to this complaint, both Complainants
worked as District Engineer Technicians at the California Area Indian
Health Service in Sacramento, California.
Believing that the Agency subjected them to unlawful discrimination,
both Complainants contacted an Agency EEO Counselor to initiate the EEO
complaint process. On March 7, 2003, Complainant 1, Complainant 2, and
the Agency entered into a settlement agreement to resolve the matter.
The settlement agreement provided, in pertinent part, that:
All parties are attempting to remove current adverse action in
[Complainant 1's] file. [A specific supervisor (Supervisor)] will directly
supervise [Complainant 1] and [Complainant 2]. [Supervisor] has also
agreed that they will be in charge of [their] own scattered projects.
[Supervisor] will be responsible for all aspects of the program
in the Redding District, input by the Director only when necessary.
When technicians face a difficult problem with a contractors' attitude
or poor craftsmanship, [Supervisor] will intervene and be responsible for
effectively resolving the problem. PD's through GS-9 will [be] clarified
and finalized. [The Agency] will provide all financial support which
allows technicians to qualify. Includes coursework, instruction, tuition
fees, and transportation and all necessary supplies. It is agreed that
if schooling causes overtime, according to Agency policy no pay will be
compensated for overtime.
On January 18, 2007, the Complainants contacted the EEO Director
in writing to inform her that the settlement agreement was breached.
Specifically, they indicated that the Agency moved the Supervisor so that
he did not directly supervise Complainant 1 or 2.1 The record reveals
that the EEO Director did not specifically address their concerns, and
instead referred them to an EEO Counselor. In complaints dated June
20, 2007, Complainants 1 and 2 each filed separate formal complaints of
discrimination, as directed by the EEO Counselor.
The Agency dismissed the complaints of Complainant 1 and 2 separately.
Both Complainants filed appeals to the Commission. The Commission in
separate decisions in EEOC Appeal Nos. 0120073725 and 0120073719 (January
26, 2009), found that the Agency improperly handled the Complainants'
claim of breach of the settlement agreement. As such, among other
things, the Commission reversed the Agency's decision and remanded the
Complainants' claim of breach of the March 7, 2003 settlement agreement
for further processing pursuant to 29 C.F.R. � 1614.504.
The Agency issued determination decisions to Complainants 1 and 2, dated
August 12, 2009 and August 14, 2009, respectively. In these decisions,
the Agency concluded that it did not breach the settlement agreement at
issue. The Agency indicated in its determinations that the Supervisor
is a member of the Commissioned Corps of the Public Health Service and
has been deployed to operations in Saipan in the Marianas Islands chain
in the Pacific Ocean. The Agency noted that it would be unreasonable
to expect the Supervisor to remain Complainant 1 and 2's supervisor
in perpetuity. The Agency noted that such an idea was not part of the
settlement agreement. Therefore, it concluded in both determinations
that it did not breach the settlement agreement.
CONTENTIONS ON APPEAL
Complainant 1 appealed asserting that the settlement agreement was
breached and that any changes to the terms of the agreement required
modification by the parties in writing. Complainant 1 claimed that this
did not occur, so the reassignment of the Supervisor was a breach of
the settlement agreement. Complainant 1 also noted that he has since
been issued an appraisal of "Minimally Successful" and transferred from
his office causing great hardship. Complainant 2 appealed arguing that
the settlement agreement was breached when the Supervisor was moved.
Further, Complainant 2 stated that he did not reach the GS-9 level
until he informed the Agency that he should have been assigned to that
level. Complainant 2 also requested that the Commission find that the
Agency breached the settlement agreement based on the transfer of the
Supervisor.
ANALYSIS AND FINDINGS
As noted above, the Commission has consolidated the appeals of
Complainants 1 and 2, namely EEOC Appeals 0120093748 & 0120093756.
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. Dep't of Def., 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. Dep't 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. U.S. Postal Serv., 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 instant case, both Complainants 1 and 2 allege that the Agency
breached their March 7, 2003 settlement agreement when the Supervisor
was moved from their chain of command. The Commission has held that
where an individual bargains for a position without any specific
terms as to the length of service, it would be improper to interpret
the reasonable intentions of the parties to include employment in that
exact position ad infinitum. See Holley v. Dep't. of Veterans Affairs,
EEOC Request No. 05950842 (November 13, 1997); Papac v. Dep't. of
Veterans Affairs, EEOC Request No. 05910808 (December 12, 1991); see
also Parker v. Dep't. of Defense, EEOC Request No. 05910576 (August
30, 1991). Similarly, the Commission finds that it would be improper
to interpret the terms of the instant settlement agreement that the
Supervisor would continue to supervise Complainants 1 and 2 forever.
Here, the record indicates that the Supervisor was the Complainants'
superior from 2003 through 2007. We find that this period of over
three years was sufficient time to establish good faith compliance by
the Agency with the terms of the settlement agreement.
Further, to the extent Complainant 1 and 2 alleged that they were
subsequently subjected to retaliatory harassment, the Commission notes
that these new claims of discrimination should first be raised with the
Agency's EEO Office, not the Commission.
CONCLUSION
Accordingly, the Agency's determinations finding no breach were proper
and are hereby AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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
77960, Washington, DC 20013. 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 (S0610)
You have the right to file a civil action in an appropriate United States
District Court within ninety (90) calendar days from the date that you
receive this decision. 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. If you
file a request to reconsider and also file a civil action, filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z0610)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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
May 6, 2011
__________________
Date
1 The record indicated that Complainant 1 and Complainant 2 also raised
new claims of retaliatory harassment which became new complaints and
are not subject of the instant appeals.
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2
0120093756
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
5
0120093748 & 0120093756