0120172320
10-03-2017
Adina P,1 Complainant, v. Robert M. Speer, Acting Secretary, Department of the Army, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Adina P,1
Complainant,
v.
Robert M. Speer,
Acting Secretary,
Department of the Army,
Agency.
Appeal No. 0120172320
Agency No. ARPINEB16SEP03811
DECISION
Complainant filed a timely appeal with this Commission from a final decision (FAD) by the Agency dated May 17, 2017, 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Human Resource Specialist at the Agency's Pine Bluff Arsenal facility in Pine Bluff, Arkansas. Believing that the Agency subjected her to unlawful discrimination, Complainant contacted an Agency EEO Counselor to initiate the EEO complaint process. On January 11, 2017, Complainant and the Agency entered into a settlement agreement to resolve the matter. The settlement agreement provided, in pertinent part, that:
(a) Immediately initiate the process of placing the complainant on telework upon signature of this document. Contingent upon the complainant meeting all telework policy requirements according to Civilian Human Resource Agency (CHRA). The complainant will be placed in telework status no later than fourteen (14) business days after the completion of these requirements.
(b) Once placed in telework status, the complainant will be allowed 100% telework for the first sixty (60) working days. After this time period the complainant will be placed on partial telework where she will be required to work in person at the Pine Bluff Arsenal Civilian Personnel Office three (3) business days per pay period as directed by the CPAC director and telework for the remaining scheduled working days.
By letter to the Agency dated April 19, 2017, Complainant alleged that the Agency was in breach of the settlement agreement, and requested that the Agency specifically implement its terms. Specifically, Complainant alleged that the Agency failed to properly place her in telework status within the time frame listed as (a). She further noted that she and the Agency had a "gentleman's agreement" that she would be allowed to work the first 60 working days of 100% telework without contact with the harasser. Further, Complainant received an email dated April 12, 2017, stating that the telework agreement was terminated. The email from the Supervisor indicated that Complainant had continued connectivity issues and was unable to complete workload assignment. As such, the supervisor found that Complainant's problems affected the efficiency of the workplace and continued to jeopardize the standard of customer service that is expected of the workplace. Based on the Agency's failure to comply with the settlement agreement, Complainant requested that the Agency reinstate her complaint.
In its May 17, 2017 FAD, the Agency concluded that it did not breach the settlement agreement. The Agency held that the delay in providing Complainant's with telework was due to Complainant's failure to complete the required paperwork to telework until February 7, 2017. Therefore, she was allowed to begin teleworking on February 13, 2017. As such, the Agency found it was in compliance with provision (a). As for provision (b), the Agency determined that it was Complainant's ongoing problems with completing her assignments and connectivity. Therefore, based on her problems, the Supervisor found that Complainant jeopardized the efficiencies of the workplace. The Agency determined that it failed to comply with provision (b) but the non-compliance was due in part to Complainant's inability to meet the functions of her position. To the extent Complainant asserted that the parties had a "gentlemen's agreement," the Agency noted that the settlement agreement did not include any language as to keeping Complainant from communicating with the alleged harasser for 60 days. As such, the Agency found that there was no breach of the settlement agreement for the alleged provision was not actually part of the agreement itself.
This appeal followed.
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).
As an initial matter, we find that Complainant alleged that the Agency failed to comply with the "gentlemen's agreement" which was not part of the actual agreement. As stated above, intent of the parties as expressed in the contract, not some unexpressed intention, shall control. Complainant's alleged "gentlemen's agreement" was not included in the text of the settlement agreement and, therefore, unenforceable.
As such, we turn to provisions (a) and (b). As to provision (a), the parties agreed to place Complainant, upon completion of all telework policy requirements, in telework status within 14 business days of the completion of these requirements. The Agency indicated that Complainant completed all the telework requirements on February 7, 2017, and began telework on February13, 2017, well within the 14 day timeframe. It appears that Complainant understood the agreement to place her in telework within 14 business days which is not meaning of provision (a). Therefore, we find that the Agency complied with provision (a) of the settlement agreement.
In provision (b), the parties agreed that Complainant would be allowed to work 100% telework for the first sixty (60) working days. The parties agreed that the Agency breached the agreement. The Agency asserted that it was Complainant's failure to perform while on telework and her issues of connections. Based on these inefficiencies to production, the Agency ended Complainant's 100% telework earlier than 60 working days. Upon review, clearly the Agency ended Complainant's telework earlier than the 60 working days which was a breach of the settlement agreement. The Agency provided justification for its breach. However, the Agency's justification of performance qualification was not included in the settlement agreement for the first 60 working days. As such, we agree with Complainant that the Agency's action of cancelling 100% telework with less than 20 working days left constituted breach of the settlement agreement.
Where we find a breach, the Commission has two options to remedy the situation: 1) reinstate the complaint or 2) order specific performance. In this case, Complainant asked to reinstate the underlying complaint.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we REVERSE the Agency's final determination and REMAND the matter in compliance with the ORDER below.
ORDER (E1016)
As Complainant elected to reinstate her EEO complaint, the Agency shall resume processing the EEO complaint from the point processing ceased. The Agency is ordered to process the remanded claims in accordance with 29 C.F.R. � 1614.108 et seq. The Agency shall acknowledge to the Complainant that it has received the remanded claims within thirty (30) calendar days of the date of this decision. The Agency shall issue to Complainant a copy of the investigative file and also shall notify Complainant of the appropriate rights within (15) calendar days of the date of this decision, unless the matter is otherwise resolve prior to that time. If the Complainant requests a final decision without a hearing, the Agency shall issue a final decision within sixty days of receipt of Complainant's request.
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. A copy of the Agency's letter of acknowledgement to Complainant and a copy of the notice that transmit the investigative file and notice of rights must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0617)
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 in the digital format required by the Commission, and submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g). 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 (M0617)
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. A party shall have twenty (20) calendar days of receipt of another party's timely request for reconsideration in which to submit a brief or statement in opposition. See 29 C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 � VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. Complainant's request may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 agency's request must be submitted in digital format via the EEOC's Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g). 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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M. Hadden's signature
Carlton M. Hadden, Director
Office of Federal Operations
October 3, 2017
__________________
Date
1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website.
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