Abiegail Yazzie, Complainant,v.Kathleen Sebelius, Secretary, Department of Health and Human Services (Indian Health Service), Agency.

Equal Employment Opportunity CommissionMay 24, 2013
0120131032 (E.E.O.C. May. 24, 2013)

0120131032

05-24-2013

Abiegail Yazzie, Complainant, v. Kathleen Sebelius, Secretary, Department of Health and Human Services (Indian Health Service), Agency.


Abiegail Yazzie,

Complainant,

v.

Kathleen Sebelius,

Secretary,

Department of Health and Human Services

(Indian Health Service),

Agency.

Appeal No. 0120131032

Agency No. HHSIHS02262011

DECISION

Complainant filed a timely appeal with this Commission concerning 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.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Mental Health Specialist at the Agency's Northern Navajo Medical Center facility in Shiprock, New Mexico.

Believing that the Agency subjected her to unlawful discrimination, Complainant contacted an Agency EEO Counselor to initiate the EEO complaint process. On September 30, 2011, Complainant and the Agency entered into a settlement agreement to resolve the matter.

The settlement agreement provided, in pertinent part, that:

(1) By October 24, 2011, Supervisor of [Complainant] will create competencies and plan to demonstrate she is competent for a promotion to GS11.

(2) Seven (7) day suspension with no appeal. Suspension to occur October 9-16. Notwithstanding the above provisions, the claimant reserves the right to utilize all processes available to expunge the record of suspension from her personnel records.

(3) Attorney fees of $2500.00.

(4) Will not hold suspension against her in regards to her being promoted.

In her appeal to the Commission dated December 26, 2012, Complainant alleged that the Agency was in breach of the settlement agreement, and requested that the Agency specifically implement its terms. Complainant alleged that her supervisor gave her an outline of the competencies she would be required to complete for a promotion to GS 11 on October 17, 2011. The letter indicated that the supervisor would work with Complainant to achieve her goal of a promotion. However, shortly thereafter the supervisor left and Complainant asserts that the new supervisor has not assisted her.

In response to the Complainant's appeal, the Agency sent the file for the underlying complaint without any comment. Nothing in this file addresses Complainant's breach allegations. It is not clear that Complainant informed the Agency of her breach allegations prior to filing her appeal.

ANALYSIS

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).

Breach allegations are processed pursuant to the procedures detailed in 29 C.F.R. �1614.504. In the instant case, we cannot determine that these procedures were followed or that the Agency has issued a determination decision on Complainant's breach claim with appeal rights to EEOC. Thus, we will REMAND the matter back to the Agency pursuant to the following Order.

ORDER

Within thirty (30) calendar days of the date this decision becomes final, the Agency shall issue notice to Complainant acknowledging that it has received the breach claim and will process in accordance with the procedures and timeframes outlined in 29 C.F.R. �1614.504. When the Agency issues a final determination decision on the claim, it shall provide Complainant with the right to appeal to EEOC.

The Agency is further directed to submit a report of compliance, as provided in the statement entitled "Implementation of the Commission's Decision." The report shall include supporting documentation verifying that the corrective action has been implemented.

IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610)

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 77960, Washington, DC 20013. 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 (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), 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 (R0610)

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 (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 24, 2013

__________________

Date

2

0120131032

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

2

0120131032