0120101118
06-18-2010
Caryline H. Kish, Complainant, v. Robert M. Gates, Secretary, Department of Defense, (Army & Air Force Exchange Service), Agency.
Caryline H. Kish,
Complainant,
v.
Robert M. Gates,
Secretary,
Department of Defense,
(Army & Air Force Exchange Service),
Agency.
Appeal No. 0120101118
Agency No. AAFES 08.069
DECISION
Complainant filed a timely appeal with the Equal Employment Opportunity
Commission (EEOC or Commission) from a Determination by the Agency dated
December 21, 2009, which had appeal rights to the EEOC, finding that
it was in compliance with the terms of the October 15, 2008 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
The settlement agreement provided, in pertinent part, that:
AAFES agrees to provide the Complainant with a 90 day training plan
within her current position as a Senior Sales Associate. The training
plan will be completed and presented to the Complainant within 30 days
from the last date on this agreement. Once the Complainant has been
presented with the training plan, the Complainant will have 90 days to
complete the training.
On May 26, 2009, Complainant signed off on a Job Training Plan in a box
marked "Completion Validation." The plan has 50 line item training topics,
some with more than one part (e.g., gift cards (WBL 194H) & money orders).
The plan, which is in a column format, contains two corresponding columns
for each line item training topic. The first is entitled "Trainer
Initials" and the second is "Date Trained." Trainers initialed all the
line item training topics in the first column, but there are only some
dates signifying completion in the
"Date Trained" column. The dates signifying completion are both before
and after May 26, 2009, and at least one was before the settlement
agreement.
In writing on September 1, 2009, Complainant alleged that the Agency
breached the settlement agreement. Specifically, she alleged that it
did not train or failed to train her adequately in, but not necessary
limited to, military star payments and account applications, processing
returned checks, the C-10 function (checking for returned checks),
processing layaways and layaway payments, civil recoveries, processing
refunds, catalog orders, returns, sending and receiving faxes, and taking
and receiving all forms of payment. Some line items in the training
plan like "catalog order merchandise," "item eligibility/lay-away/take
it home today," and "sales promotions, to include star card promos,"
correspond closely with topics in Complainant's failure to train list,
while others appear to be encompassed within training plan items "POS
register operations," "checks and credit cards," "payments, coupons,
and travelers checks," gift cards (WBL 194H) & money orders," "reprint
receipt/refund req. policies," and "payment in full requirement." It
does not appear that sending and receiving faxes was included in the
training plan.
In response to an internal Agency inquiry on compliance with the
settlement agreement, an Area Human Resources Manager indicated by email
that with certain subjects there was a problem of Complainant telling
supervisors she already knew the subject and refusing to initial the
training plan to signify training thereon. In a subsequent letter,
Complainant contended that she was not trained in certain line items of
the training plan, for the most part referring to the training plan line
items referenced above.
In its December 21, 2009, Determination, the Agency found that once it
provided Complainant a training plan, the onus was on her to complete
the training. It found that Complainant validated the completion of
training on May 26, 2009. The Agency noted that Complainant filed an
EEO complaint, which was accepted for investigation, that the training
she received was inadequate.
CONTENTIONS ON APPEAL
Complainant argues that the Agency did not complete the training listed
in the training plan, and that her May 26, 2009, signature thereon
acknowledged receipt of the training plan, not that she received
the training. She argues that she was not trained on some line item
training plan topics which have dates signifying training was completed.
She argues that the Agency was late in giving her the training plan, and
has refused her requests for training, or the training was inadequate.
The Agency makes no argument on appeal.
ANALYSIS AND FINDINGS
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).
In her notice of breach, Complainant contended that she was not trained
or received inadequate training in a relatively limited number of topic
areas. In an internal email, the Agency countered that when Complainant
was offered training, she refused, saying she already knew the subject
and then would decline to initial topic area in the training plan as
completed. The Agency's Determination suggests that Complainant did not
avail herself of training opportunities, i.e., "the onus of completing the
training" was on Complainant. On appeal, Complainant greatly broadens the
line item training topics on which she claims she received no training.
We agree with Complainant's contention that the training plan itself,
as it stood on May 26, 2009, does not indicate that all training was
already completed because many of the line item training items have no
dates signifying completion, and some others have alleged completion
dates after May 26, 2009. We note that the record contains backup
documentation of training on some line item training plan topics in the
form of online training printouts and training attendance rosters.
The Commission implies a term of good faith into all settlement
agreements. Mendez v. Department of Veterans Affairs, EEOC Appeal
No. 01953944 (June 6, 1996). Good faith compliance with the settlement
agreement requires that the Agency provide training adequate to impart
understanding by the average employee, and that Complainant cooperate
with training or waive the requirement on line item training plan topics
she deems unnecessary.
Given the parties varying accounts of what has occurred, we are unable
to determine at this point whether the Agency breached the settlement
agreement. The order below addresses this, and requires that steps be
taken to ensure compliance. The Agency's Determination is VACATED.
ORDER
The parties are ordered to take the following actions:
1. Within 15 calendar days after this decision becomes final, the Agency
shall send a letter to Complainant and her attorney requesting that
Complainant identify in writing each May 26, 2009, Job Training Plan line
item topic for which she still wants training and has received inadequate
or no training thereon. For each such line item, Complainant must write
whether she received no training or inadequate training. If she contends
training was inadequate, she must explain in writing, to the best of
her ability, why the training was inadequate. The letter shall give
Complainant 15 calendar days from receipt of the letter to respond.
2. For each line item training plan topic identified by Complainant above,
the Agency shall gather evidence on whether it provided her adequate
training, or gave Complainant an opportunity for such training which
she refused. For each line item training topic that Agency believes
Complainant received adequate training or for which Complainant refused
training, the Agency must include a statement from an Agency official
in a position to know why the training was adequate, or details of
Complainant's refusal, along with any back up documentation.
3. For each line item training plan topic identified by Complainant
above on which the Agency concedes she received no training or inadequate
training or there is a lack of documentation to show adequate training,
including those that Complainant allegedly previously refused training
but now wants it, the Agency shall provide Complainant adequate training
within 90 calendar days after this decision becomes final. Complainant
shall cooperate with these efforts. The Agency shall document in
writing when the training occurs, and include a statement by an Agency
official in a position to know why it was adequate. If Complainant
refuses any offered training, the Agency shall document each refusal
with specificity.
4. Thereafter, the Agency shall provide Complainant and her attorney with
a copy of all the above documentation and statements and give Complainant
a written opportunity to reply.
5. If Complainant replies in writing that the Agency has still not
complied with the settlement agreement, the Agency shall make another
Determination, appealable to the EEOC, on whether it breached the
settlement agreement.
6. The Agency shall complete all the above actions within 150 calendar
days after this decision becomes final.
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 the letter identified in paragraph
1 above, and supporting documentation that all ordered corrective action
has been implemented. The Agency must send copies of the report, and
all accompanying documentation, to Complainant and her attorney.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K1208)
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 (M1208)
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 (S0408)
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 (Z1008)
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
June 18, 2010
__________________
Date
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0120101118
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120101118