0120160914
06-09-2016
Beth G.,1 Complainant, v. Eric K. Fanning, Secretary, Department of the Army, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Beth G.,1
Complainant,
v.
Eric K. Fanning,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120160914
Agency No. ARCENORF12DEC04983
DECISION
Complainant filed an appeal with this Commission from a final decision (FAD) by the Agency dated May 5, 2016, finding that it was in compliance with the terms of the settlement agreement into which the parties entered.2 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 at the Agency's U.S. Army Corps of Engineers, Norfolk District, in Norfolk, Virginia. Believing that the Agency subjected her to unlawful discrimination, Complainant contacted an Agency EEO Counselor to initiate the EEO complaint process. On September 2, 2015, Complainant and the Agency entered into a settlement agreement to resolve the matter. In the settlement agreement, in pertinent part, the Agency agrees to:
a. Pay directly to Complainant within 90 days of the date of signing of this Agreement, the sum of Fifteen Thousand dollars ($15,000.00).
b. Pay to Complainant's attorney, within 90 days of the date of signing or this Agreement, and upon receipt of an invoice from his office, the sum of Twelve Thousand dollars ($ 12,000.00).
c. Do a lateral management re-assignment of the Complainant to a GS-12-1102 position as a procurement analyst in the Business Oversight Branch (BOB) of the Contracting Office. The Complainant agrees to complete the fiscal year (to September 30, 2015) in her present position; therefore, the re-assignment shall be effective after September 30, 2015, taking effect at the end of the first pay period of October 2015. In accepting this re-assignment, Complainant acknowledges that current duties in the BOB are changing and will continue to change, and she accepts the duties assigned to this position.
d. A change of Complainant's 2011-2012 performance evaluation from a "2" to a "1" erasure of the Block IX comments in the second bullet. This shall be affected within 60 days of the signing of this Agreement, or as otherwise reasonable, it may be necessary to change the face of the document to reflect in the signature of the rate, that Complainant does not disagree with the new rating. No awards and or QSI's shall be awarded as a result of the change in the evaluation.
e. Restoration of 328 hours of sick leave and 55 hours of annual leave taken during the period of December 4. 2012 to February 26. 2013. This restoration process to be initiated and sent for processing to DFAS within 30 days of the signing of this agreement. However, Agency cannot control processing time by DFAS, but will ask that it be expedited.
By letter to the Agency dated November 17, 2015, 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 provide Complainant with a new position description, change her performance appraisal, and restore her leave.
When Complainant did not receive a determination by the Agency, on December 17, 2015, she filed her appeal. On appeal, Complainant indicated that the Agency had not complied with provisions (c), (d), and (e) of the Settlement Agreement.
While Complainant's appeal was pending, the Agency issued its final decision on May 5, 2016. In its FAD, the Agency concluded that it had complied with the Agreement. The Agency noted that although Complainant filed her claim of breach with the Agency, it was not forwarded to the EEO office until April 7, 2016. The Agency noted that it restored 312 hours of Complainant's sick leave and 55 hours of annual leave. It indicated that on two days during the relevant time, Complainant was given holiday leave and was not charged with sick leave on January 21, 2013 and February 18, 2013. As such, the Agency restored 312 hours, rather than the agreed amount of 328 hours of sick leave. As to the issue of the performance appraisal, the Agency indicated that the changes were made to the performance appraisal at issue and placed in her personnel file. Further, the Agency indicated that Complainant signed her new position description on March 7, 2016. As such, the Agency concluded that it had complied with the Agreement.
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).
In the instant case, the Agency provided evidence that on September 21, 2015, it restored 55 hours of annual leave and 312 hours of sick leave to Complainant. We note that the Agreement provided that Complainant would have 328 hours of sick leave restored. The Agency asserted that Complainant was not charged with leave on January 21, 2013 and February 18, 2013. Specifically, the Agency indicated that those days were federal holidays. Complainant does not contest the Agency's assertion. As such, we find that the Agency has complied with provision (e) of the Settlement Agreement.
As to the remaining provisions, we find that the Agency has shown that Complainant's new position description was provided to Complainant on March 7, 2016. Further, Complainant's performance appraisal was changed from a "2" to a "1" and provided to her personnel file. As such, we find that the Agency has complied with the Settlement Agreement with respect to provisions (c) and (d).
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's final decision finding no breach of the Settlement Agreement.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)
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 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. The requests 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 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 (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
June 9, 2016
__________________
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.
2 We note that Complainant's appeal was premature at the time of the filing. However, because the Agency issued a final decision while Complainant's appeal was pending, we find that the appeal is currently ripe for review.
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