01A13894_r
06-20-2002
Towanna Sizer, Complainant, v. Ann M. Veneman, Secretary, Department of Agriculture, Agency.
Towanna Sizer v. Department of Agriculture
01A13894
June 20, 2002
.
Towanna Sizer,
Complainant,
v.
Ann M. Veneman,
Secretary,
Department of Agriculture,
Agency.
Appeal No. 01A13894
Agency No. 990406
DECISION
On May 29, 2001, complainant filed an appeal with this Commission alleging
that the agency was not in compliance with the terms of the August 26,
1999 settlement agreement into which the parties entered.
The settlement agreement provided, in pertinent part, that:
The Agency Agrees to:
(1) Initiate an administrative inquiry of allegations contained in
this complaint to determine whether inappropriate action was taken
by management and take appropriate disciplinary action, if warranted.
This action will be initiated within 30 days from the date this agreement
is fully executed
(2) Not take any reprisal action against complainant or any of her
subordinates.
. . .
(4) Restore all sick leave used by the Complainant from December 23, 1998,
through the date of the signing of this agreement. This action will be
initiated within 30 days from the date this agreement is fully executed.
. . .
Pay reasonable attorney fees in the amount of $19, 925.57 in accordance
with 29 CFR 1614. Notice is provided to the Complainant of the
requirement of 29 CFR 1614.501(e)(2) for a verified statement of charges
and affidavit which must be filed within 30 days from the date this
agreement is fully executed. Payment will be initiated within 20 days
of receipt of the verified statement.
. . .
Both Parties Agree:
Within 30 days from the date this agreement is fully executed, initiate
the process to identify an Inter Personnel Agreement (IPA) assignment
for 1 year with an option to extend for one (1) additional year. . . .
Complainant will remain assigned to the Northeastern Research Station,
Radnor Office as the Chief Financial Officer (CFO) at her present GS-14
grade level incurring all benefits otherwise entitled. Upon completion
of the IPA assignment, complainant will be reassigned to the position
of Staff Assistant to the Director, NE Research Station and will be
supervised by the NE Station Director.
. . .
Within 30 days from the date this agreement is fully executed, to
initiate action to recruit and fill the Financial Manager/CFO position
using the AI (additional identical) appointment authority.
. . .
Not take any adverse action against the Complainant based on actions
that occurred prior to the signing of this agreement.
. . .
Prepare a memorandum, which is mutually agreed upon by both parties,
to release to employees at the Northeastern Station notifying them
that the Complainant is on an IPA assignment and that at the end of the
assignment, Complainant will return to the position of Staff Assistant
to the Director, NE Station. This memorandum will be prepared by
[Doctor A] within 30 days from the date this agreement is fully executed.
The Parties Agree:
. . .
The undersigned parties wish to comply and are bound by the terms of
this agreement. However, they recognize that the agreement is not
operative until it has been endorsed by a higher level agency official
in accordance with the provisions of the [agency's] Settlement Policy.
If the Official approves the settlement agreement as negotiated, the
terms are binding on the Parties as written, to be effective on the date
it is approved. If the Official finds the settlement agreement flawed,
the Parties agree to renegotiate and seek to cure the defect.
The record contains a copy of a flowchart documenting the agency's
approval process for settlement agreements. The document shows that the
present agreement was approved at the regional level, then forwarded to
the Washington Office for approval. The record shows that the agency
ultimately recommended the agreement for approval on October 4, 1999.
By letter to the agency dated December 31, 1999, complainant alleged
that the agency was in breach of the settlement agreement, and requested
enforcement of the terms of the agreement and damages resulting from
the agency's breach. Specifically, complainant alleged that the
agency delayed in paying attorney's fees as specified in provision (6)
of the agreement. Complainant stated that her attorney submitted all
data as to attorney's fees and costs on August 20, 1999, however, the
attorney did not receive payment until October 29, 1999. In addition,
complainant alleged that an unreasonable amount of time has been
required in implementing the IPA memorandum specified in provision (15).
Complainant also alleged that the agency has been slow in restoring leave
as stated in provision (4). Complainant stated that the agency took
unreasonable actions in finding an IPA in accordance with provision (7).
In a letter dated May 30, 2000, the agency stated that it was conducting
an inquiry into complainant's non-compliance allegations. The record
contains no further response from the agency regarding the allegations
of breach.
On appeal, complainant states that she has been subjected to acts of
retaliation in breach of the settlement agreement. Complainant states
that the agency has communicated to various callers that she is on
extended leave and cannot be reached. Complainant states that per
the agreement, she is now performing under an IPA and thus claims that
the agency is providing knowingly false misinformation regarding her
status on extended leave. Complainant claims that she was subject to
reprisal when she was given unequal professional support, in terms of
proper equipment and accommodations. Complainant also claims that she
was subject to reprisal when she was told to report for an interview
by the Inspector General's office. In addition, complainant claims
that her subordinates and those who supported her in her EEO case have
been subjected to retaliation in violation of the agreement. Further,
complainant alleges that the agency failed to comply with specific
terms of the settlement agreement. Specifically, complainant claims
that the agency failed to timely pay attorney's fees, failed to timely
provide the memorandum informing employees of her IPA assignment,
delayed in implementing the restoration of leave, and delayed in
implementing the provisions for the IPA. Complainant states that the
agency has not complied with provision (1) which requires the agency to
conduct an inquiry into the allegations contained in her EEO complaint.
Complainant also states that the agency breached provision (8) of the
agreement when it assigned Person A to the CFO position while complainant
was still on the IPA assignment.
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).
At the outset, the Commission finds that complainant's claim that she
was subjected to acts of reprisal in violation of the agreement should
be processed as a separate complaint and not as a breach of settlement.
29 C.F.R. � 1614.504(c). If complainant wishes to pursue her claims
involving the agency's subsequent actions, she must (unless she has
done so already) initiate contact with an EEO Counselor within fifteen
(15) calendar days of receiving this decision. The Commission advises
the agency that if complainant seeks counseling within the fifteen-day
period indicated above, it must consider the claims as having been raised
with an EEO Counselor on the dates she alleged breach of the settlement
agreement, unless she previously contacted a counselor regarding this
matter. Cf. Qatsha v. Department of the Navy, EEOC Request No. 05970201
(January 16, 1998).
Complainant claims the agency breached the settlement agreement when it
delayed in providing her attorney payment of attorney's fees and costs.
Provision (6) of the agreement stated that the agency would initiate
payment of $19,925.57 within 20 days of receipt of a verified statement
of charges by complainant's attorney. Complainant states that her
attorney submitted all data as to attorney's fees and costs on August
20, 1999, however, the attorney did not receive payment until October
29, 1999. The record reveals that the agreement was fully executed
on October 4, 1999, the day the agency gave final approval to the
terms of the agreement. Therefore, we find that payment of attorney's
fees was initiated, at most, 5 days beyond the agreed upon time frame.
Upon review, the Commission finds that the agency substantially complied
with provision (6) of the settlement agreement..
Complainant also states that the agency has not complied with provision
(1) of the agreement. Under provision (1), the agency was required
to conduct an inquiry into the allegations contained in her complaint.
According to the agreement, the agency was to initiate an administrative
inquiry within 30 days from the date the agreement is fully executed.
There is no evidence in the record to show whether an administrative
inquiry was conducted. Thus, the Commission is unable to determine
whether the agency complied with provision (1) of the agreement.
Therefore, the Commission shall remand the matter so that the agency
will address whether it has complied with provision (1).
Complainant alleged that the agency was slow in restoring leave as
stated in provision (4) of the agreement. According to the agreement,
the agency was to restore all sick leave used by complainant from
December 23, 1998, through the date of the signing of this agreement.
The restoration of leave was to be initiated within 30 days from the
date the agreement was fully executed. It is unclear from the record
whether the agency restored all sick leave used during the relevant time
frame and when such restoration was initiated. Thus, the Commission
is unable to determine whether the agency complied with provision (4)
of the agreement. Therefore, the Commission shall remand the matter so
that the agency will address whether it has complied with provision (4).
Complainant stated that the agency took unreasonable actions in finding
an IPA in accordance with provision (7). The agreement provided that
within 30 days from the date the agreement is fully executed, the agency
is to initiate the process to identify an Inter Personnel Agreement
(IPA) assignment for one year with an option to extend for one (1)
additional year. On appeal complainant acknowledges that she is working
under an IPA in accordance with the agreement, however, it is unclear when
complainant began working in the IPA assignment. Thus, the Commission
is unable to determine whether the agency complied with provision (7)
of the agreement. Therefore, the Commission shall remand the matter so
that the agency will address whether it has complied with provision (7).
Complainant states that the agency breached provision (8) of the agreement
when it assigned Person A to the CFO position while she was still on
the IPA assignment. The record contains no evidence showing whether
the agency has complied with provision (8) of the settlement agreement.
Thus, the Commission is unable to determine whether the agency complied
with provision (8) of the agreement. Therefore, the Commission shall
remand the matter so that the agency will address whether it has complied
with provision (8).
Complainant alleged that the agency delayed in implementing the
IPA memorandum specified in provision (15). The record contains
a letter dated October 27, 1999, in which complainant's attorney
enclosed a proposed memorandum drafted in accordance with provision
(15). Complainant mentions receiving a revised proposed draft of the
memorandum to be issued in accordance with the agreement, however, a copy
of this draft is not in the record. There is no evidence in the record
indicating whether the memorandum was issued. Thus, the Commission
is unable to determine whether the agency complied with provision (15)
of the agreement. Therefore, the Commission shall remand the matter so
that the agency will address whether it has complied with provision (15).
Accordingly, the agency's decision finding no breach of provision (6)
of the settlement agreement is AFFIRMED. The agency's decision that it
complied with provisions (1), (4), (7), (8), and (15), of the settlement
agreement is VACATED and the matter is REMANDED to the agency for further
processing in accordance with the Order below.
ORDER
The agency shall supplement the record with documentation showing
whether it has complied with provisions (1), (4), (7), (8), and (15)
of the 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 provisions 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 (T0900)
This decision affirms the agency's final decision/action in part, but it
also requires the agency to continue its administrative processing of a
portion of your complaint. 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 on both that portion
of your complaint which the Commission has affirmed and that portion
of the complaint which has been remanded for continued administrative
processing. 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 your appeal with the Commission, until
such time as the agency issues its final decision on your complaint.
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 (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