01a44725
11-18-2004
Alma J. Keating, Complainant, v. R.L. Brownlee, Acting Secretary, Department of the Army, Agency.
Alma J. Keating v. Department of the Army
01A44725
November 18, 2004
.
Alma J. Keating,
Complainant,
v.
R.L. Brownlee,
Acting Secretary,
Department of the Army,
Agency.
Appeal No. 01A44725
Agency No. ARFTBELV93APR0008
DECISION
I. BACKGROUND
Complainant filed a timely appeal with this Commission from a final
decision (FAD) by the agency dated June 2, 2004, finding that it was in
compliance with the terms of the August 25, 2003 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.
The settlement agreement provided, in pertinent part, that:
(1) PART-TIME EMPLOYMENT: The complainant will remain in her part-time
position of 20 hours per week (40 hours a pay period) and will reconsider
an increase to 32 hours per week when the employee currently job sharing
with the complainant leaves the current job sharing arrangement.
(2) ACS BUDGET: The agency, specifically the current Soldier and Family
Support Officer, will allocate discretionary budget funds to the programs
that make the most compelling case for funding.
(3) COMMUNICATION: On a day to day basis, the Director, Army Community
Services will communicate her work expectations to the complainant
through the
Army Employment Readiness Program Manager (the complainant's co-worker)
except when direct communication is necessary (e.g. staff meetings),
and vice-versa.
(4) TRAINING: The agency, specifically the Soldier and Family Support
Officer, will, within 10 business days of all parties having signed the
agreement, initiate the arrangement of sensitivity awareness training
for her entire staff on the issue of disability in the workplace.
By letter to the agency dated April 22, 2004, complainant alleged that the
agency was in breach of the provisions of the settlement agreement recited
above, and requested that the agency specifically implement its terms.
In its June 2, 2004 FAD, the agency concluded that it had not breached
the settlement agreement.
II. LEGAL STANDARD
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 O 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).
III. ANALYSIS
In the instant case, the Commission finds that the agency violated
paragraphs (1) and (4) of the settlement agreement.
(1) PART-TIME EMPLOYMENT: The complainant will remain in her part-time
position of 20 hours per week (40 hours a pay period) and will reconsider
an increase to 32 hours per week when the employee currently job sharing
with the complainant leaves the current job sharing arrangement.
We find that the agency violated paragraph (1)<1> by refusing to
allow complainant to increase her work schedule to 32 hours per week
as provided in the settlement agreement. Complainant averred that she
requested of the ACSO to work 32 hours per week while the job sharing
position remained vacant. She stated that the ACSO said she could
either work 20 or 40 hours per week, but not 32. The ACSO stated
that complainant never made such requests and that complainant's only
communication regarding her work schedule was an email suggesting she
work 35 hours per week if it would be helpful to the program. We find
that Complainant did request to increase her work schedule to 32 hours
per week. She provided a declaration from her coworker and a letter from
her doctor sent to the ACSO stating that she had requested to do so.
Complainant explained that her email to the ACSO offering to work 35
hours per week was offered as an attempt to compromise. We also note
that the opening sentence of complainant's email references an ongoing
exchange with the ACSO regarding her work schedule. We, therefore,
find that complainant did request to work 32 hours per week.
The agency argues, in the alternative, that complainant's requests were
untimely, considering only a month passed between the departure of the
former job sharing employee and the arrival of the new job sharer.
The agency implies that with a new job sharer coming it was not
feasible to raise complainant's work schedule to 32 hours per week.
The agency's arguments fail on two grounds. First, we note that the
settlement agreement does not place any limitation on complainant's option
to work 32 hours per week once the current job sharing employee leaves
the current job sharing arrangement. Under the agreement as written,
complainant has the option to increase her work hours, regardless of
any future job sharing arrangement the agency implements. Second, the
record reveals that complainant's requests occurred well in advance
of the former job sharing employee's departure on March 31, 2004.
Complainant's coworker discussed complainant's requests with the ACSO
in late February or early March of 2004, knowing the then current job
sharer was due to leave at the end of March. Complainant's conciliatory
email was sent on February 21, 2004. The record, thus, indicates that
complainant gave the agency ample notice of her desire to increase her
weekly hours according to the settlement agreement.
(2) ACS BUDGET: The agency, specifically the current Soldier and Family
Support Officer, will allocate discretionary budget funds to the programs
that make the most compelling case for funding.
We find that the agency did not violate paragraph (2).<2> Complainant
failed to produce evidence sufficient to show her program made a more
compelling case for discretionary funding than other programs. She stated
that, while participation in her program has increased, her budget has
decreased from $12,000 to $8,500. It is not, however, clear from the
record that the budget to which she referred includes discretionary funds.
Even assuming it did, complainant failed, furthermore, to provide any
comparative evidence from which the we could conclude that her program
was more deserving than others.
(3) COMMUNICATION: On a day to day basis, the Director, Army Community
Services will communicate her work expectations to the complainant
through the Army Employment Readiness Program Manager (the complainant's
co-worker) except when direct communication is necessary (e.g. staff
meetings), and vice-versa.
We find that the agency did not violate paragraph (3)<3> of the
settlement agreement when the ACSO demanded to speak with complainant
alone to discuss work matters. This subparagraph requires that the ASCO
communicate her work expectations for complainant through an intermediary,
except when necessary to communicate directly. Situations requiring
direct communication include but are not limited to staff meetings.
The provision does not stipulate that direct communication, when
necessary, must occur in the presence of a witness. The record reveals
that the ACSO called complainant to her office to discuss work matters.
Complainant brought the designated intermediary to witness the meeting.
The ACSO directed the intermediary to leave and proceeded to conduct a
meeting with the complainant alone. The ACSO's conduct was not prohibited
by the settlement agreement.
Complainant argues that the example in the agreement of when direct
communication would be necessary, staff meetings, implies that
direct communication can only occur in the presence of other people.
That interpretation is neither logical nor apparent from the language
of the agreement. The presence of other people is unrelated to a need
for direct communication. The better interpretation is that because a
staff meeting requires complainant to be in the presence of the ASCO, it
is an example of when direct communication is necessary. If complainant
intended to have the additional stipulation that other people be present
during all direct communication it could have been included in the
settlement agreement. See e.g. Jenkins-Nye v. General Services
Administration, EEOC Appeal No. 01851903 (March 4, 1987) (stating that
to the extent that complainant had specific expectations they should
have been included in the settlement agreement).
(4) TRAINING: The agency, specifically the Soldier and Family Support
Officer, will, within 10 business days of all parties having signed the
agreement, initiate the arrangement of sensitivity awareness training
for her entire staff on the issue of disability in the workplace.
We find that the agency violated paragraph (4)<4> when it failed to
initiate training on the issue of disability in the workplace within 10
business days of the settlement agreement being signed by all parties.
The settlement agreement was finalized and signed on August 25, 2003.
The record reveals no effort by the agency to initiate such training until
May of 2004, when the ACSO sent an email to another agency official to
arrange for training.
IV. CONCLUSION
For the foregoing reasons, the Commission VACATES the agency's final
decision and REMANDS the case to the agency for specific performance of
the parties' settlement agreement.
ORDER
The agency is ORDERED to comply with the terms of the settlement agreement
by permitting complainant to work 32 hours a week if she so chooses and
instituting sensitivity training regarding disability in the workplace
as proscribed in paragraphs (1) and (4) of the settlement agreement,
respectively. The agency also must notify the Compliance Officer of
its compliance with this order, as referenced below.
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 (S0900)
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 (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
__November 18, 2004________________
Date 1Paragraph (1) is labeled subparagraph
4.a. of the actual agreement.
2Paragraph (2) is labeled subparagraph 4.b. of the actual agreement.
3Paragraph (3) is labeled subparagraph 4.c. of the actual agreement.
4Paragraph (4) is labeled subparagraph 4.d. of the actual agreement.