01a44344
03-10-2005
Catherine M. Jones, Complainant, v. Peter B. Teets, Acting Secretary, Department of the Air Force, Agency.
Catherine M. Jones v. Department of the Air Force
01A44344
March 10, 2005
.
Catherine M. Jones,
Complainant,
v.
Peter B. Teets,
Acting Secretary,
Department of the Air Force,
Agency.
Appeal No. 01A44344
Agency No. 7K0J03011
DECISION
Complainant filed this appeal with the Commission from a May 11, 2004
agency decision finding that it was not in breach of the terms of the
February 5, 2004 settlement agreement into which the parties had entered.
Paragraph 2 of the settlement agreement provided as follows:
a. Provide Ms. Jones with additional software training to expand
upon the basics and to enhance mission accomplishment as well as the
complainant's expertise and knowledge level.
b. Provide Ms. Jones with 2 days time off award in conjunction with
her performance appraisal effective 1 June 2003.
c. Ms. Jones will receive a detailed outline of specific job performance
requirements, to include strengths as well as detailed improvements
required. This will be provided within 15 workdays from the date of
this settlement.
d. Remove witness statements from the Supervisor's Record of Employee
that were provided to support the counseling issued on 29 April 2003.
e. Ms. Jones may attach a personal statement to the counseling issued
29 April 2003. This statement will comment on the issues identified in
the counseling. It will not in any manner be contrary to the terms and
intent of this settlement agreement, thus will not discuss nor mention
discrimination. It will not ... exceed one page.
In a letter dated April 15, 2004, complainant alleged that the agency was
in breach of paragraph 2 (sections a, c, d, and e). In its decision,
the agency concluded it was not in breach of any of the terms of the
settlement agreement as alleged by complainant.
Regarding paragraph 2(a), the agency stated in its decision that
complainant was offered a training opportunity at Gulf Coast Community
College for a Micro Computer Applications Course on April 23, 2004, which
was scheduled for Mondays and Wednesdays from May 10, 2004 through June
22, 2004, from 5:00 p.m. to 8:30 p.m., and that complainant declined
the offer because she was taking a quilting class that conflicted with
the training time. The agency further stated that complainant received
training on May 5, 2004 and May 7, 2004, and that complainant's supervisor
informed complainant that she would continue to receive in-house training.
The agency noted that complainant's supervisor had developed an additional
training plan.
Concerning the alleged breach of paragraph 2(c), the agency stated in
its decision that on February 18, 2004, complainant received a detailed
outline of specific job performance requirements, including her strengths,
as well as detailing improvements required. Regarding paragraph 2(d),
the agency stated that it had removed all witness statements from the
Supervisor's Record of Employee. Regarding paragraph 2(e), the agency
found that complainant had provided a personal statement and that
complainant's statement was attached to the counseling on March 5, 2004.
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).
Paragraph 2(a)
The record reveals that complainant received computer-based training
provided by the agency and that complainant received the following
certificates for successful completion of the computer-based training:
(1) on May 19, 2004, for successful completion of Introducing Windows XP
(non-audio); (2) on June 4, 2004, for Office 2000: Beginning Word; (3)
on June 8, 2004, for Microsoft 2000: Intermediate Word; and (4) on June
21, 2004, for Microsoft Office 2000: Intermediate Excel. The record also
contains a training plan which reflects training intended for complainant
for Microsoft Office 2000: Beginning PowerPoint which was to be completed
by July 10, 2004.
The Commission finds that the agency is not in breach of paragraph 2(a)
of the settlement agreement. The agency was required to provide training
pursuant to paragraph 2(a). The record reveals that the agency provided
complainant with software training from beginner to intermediate levels.
Paragraph 2(c)
The record contains a five-page document entitled Expectations/Feedback
for complainant, dated February 18, 2004, which was signed by complainant
and the CPA. The Expectations/Feedback identified expectations on
over two pages. The Expectations/Feedback also identified specific
areas in which complainant needed improvement and where the CPA needed
assistance. The Commission therefore finds that the agency is not in
breach of paragraph 2(c), because the agency has provided complainant
with a detailed outline of specific job performance requirements,
complainant's strengths, and specific improvements required.
Paragraph 2(d)
The agency states in its decision and on appeal that it has removed the
witness statements as required from the Supervisor's Record of Employee.
Other than the agency's unsupported assertion that it has removed the
witness statements, the record contains no evidence that the agency has
removed such statements. Therefore, the Commission is unable to determine
whether the agency is in breach of paragraph 2(d). The Commission shall
remand the matter so that the agency may supplement the record with an
affidavit from an appropriate agency official indicating whether the
witness statements have been removed from the Supervisor's Record of
Employee in compliance with paragraph 2(d) of the settlement agreement.
Paragraph 2(e)
There is no dispute, and the record reveals, that complainant provided the
agency with the personal statement. There is no evidence that the agency
failed to accept the statement that complainant provided. Accordingly,
the agency is not in breach of paragraph 2(e) of the settlement agreement.
The agency's decision finding no breach of paragraphs 2(a), 2(c), and 2(e)
of the settlement agreement is AFFIRMED. The agency's decision finding
no breach of paragraph 2(d) is VACATED and we REMAND the matter to the
agency for further processing pursuant to the Order herein.
ORDER
The agency shall supplement the record with an affidavit from an
appropriate agency official indicating whether the witness statements have
been removed from the Supervisor's Record of Employee (that were provided
to support the counseling issued on April 29, 2003) in compliance with
paragraph 2(d) of the settlement agreement. Within 30 days of the date
that this decision becomes final, the agency shall issue a new decision
indicating whether the agency has complied with provision 2(d) of the
February 5, 2004 settlement agreement. A copy of the new decision must
be sent to the Compliance Officer as referenced herein.
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 (T0900)
This decision affirms the agency's final decision/action in part, but it
also requires the agency to continue its administrative processing of a
portion of your complaint. 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 on both that portion
of your complaint which the Commission has affirmed and that portion
of the complaint which has been remanded for continued administrative
processing. 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 your appeal with the Commission, until
such time as the agency issues its final decision on your complaint.
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
March 10, 2005
__________________
Date