01A32730_r
03-04-2004
Donna K. Speer, Complainant, v. Hector V. Barreto, Administrator, Small Business Administration, Agency.
Donna K. Speer v. Small Business Administration
01A32730
March 4, 2004
.
Donna K. Speer,
Complainant,
v.
Hector V. Barreto,
Administrator,
Small Business Administration,
Agency.
Appeal No. 01A32730
Agency No. 09-95-495
Hearing No. 380-A1-8106X
DECISION
On November 14, 2002, complainant filed the captioned appeal, concerning
the agency's compliance with a May 10, 2002 settlement agreement executed
by the parties to resolve the captioned complaint. The Commission
accepts the appeal. See 29 C.F.R. � 1614.402; 29 C.F.R. � 1614.504(b);
and 29 C.F.R. � 1614.405.
According to the record, complainant filed the captioned complaint on
September 2, 1995. Therein, complainant claimed that she was the victim
of unlawful employment discrimination based on sex, age, and disability.
The complaint was comprised of six claims: four claims related to denial
of promotion opportunities, and two claims related to non-selections.
Prior to a hearing (380-A1-8106X), the agency dismissed all but one
of these claims, on the grounds of untimely EEO Counselor contact.
An EEOC Administrative Judge (AJ), issued a decision on February 23,
1998, finding disability-based discrimination regarding the remaining
claim concerning a June 1995 Loan Officer training (referred to herein
as �claim (1)�). The AJ found no discrimination on the bases of sex
and age. The AJ ordered the agency to pay damages, and undertake other
remedies as well.
In a final order dated April 29, 1998, the agency declined to accept
the AJ's determination or implement his Order, and instead found no
discrimination.
In Speer v. Small Business Administration, EEOC Appeal No. 01982924
(January 5, 2001), the Commission vacated the agency's dismissal of
additional denial of training claims raised in the formal complaint
(concerning incidents which occurred prior to that in claim (1)). The
Commission also vacated the finding of no discrimination regarding claim
(1). The Commission determined that notwithstanding the AJ's finding
of no discrimination on the basis of sex and age, the June 1995 denial
claim should have also included prior denial of training opportunities
which occurred throughout 1994, under a continuing violation theory,
and ordered the agency to schedule a hearing on the re-framed claim.<1>
During the pre-hearing procedures, the AJ determined that the Commission
had upheld his decision of February 28, 1998. The AJ further determined
that the agency failed to comply with any of the remedies ordered by the
AJ in the February 23, 1998 decision based on the finding of disability
discrimination, and issued a Show Cause Order to the agency on April 12,
2002 to explain its actions.
The record shows that the parties then entered into a settlement
agreement on May 10, 2002, to resolve the matter of damages as well as the
denial of training claim now associated with the captioned complaint. In
pertinent part, the settlement agreement provided that:
The agency has authorized payment of three thousand ($3000) plus interest
in response to an Order dated April 12, 2002.
(2) The agency agrees to reimburse complainant two hundred and forty-two
dollars and ninety cents ($242.90) for attorney fees per an Order dated
April 12, 2002.
(3) The agency agrees to pay an additional amount of fifteen hundred
dollars ($1,500).
By letter to the agency dated July 16, 2002, complainant informed the
AJ that the agency failed to post a notice regarding the finding of
discrimination in her favor, as referenced in the April 12, 2002 Show
Cause Order, and improperly calculated her interest award.
In response, the AJ advised complainant that �noncompliance issues�
must be brought to the attention of the agency, and then the Commission,
if necessary.
On August 1, 2002, complainant sent a letter to the Commission,
asking for assistance regarding some �outstanding issues concerning
her complaint.� Although the Commission replied to complainant and
notified her that she must contact the agency's EEO Director, pursuant
to 29 C.F.R. � 1614.504, she nonetheless filed the instant appeal.
On appeal, complainant makes reference to the AJ's Show Cause Order,
and claims that the agency failed to comply with it. Complainant again
indicates that the agency miscalculated the interest payment and failed to
post a notice regarding a finding of discrimination. Complainant exclaims
that she �won� her case against the agency, that the agency discriminated
against her, and that at the very minimum the agency should be made to
comply with the remedies referenced in the AJ's Show Cause Order.
By letter to complainant dated March 14, 2003, the agency stated that
complainant failed to timely raise her breach claim due to her failure
to submit it to the EEO Director, despite notice of this procedure in
the settlement agreement, and specific instructions from both the AJ and
the Commission. Nonetheless, as a �courtesy,� the agency explained to
complainant that a notice was not posted because the settlement agreement
did not obligate it to do so. Next, the agency acknowledged that it
incorrectly calculated the interest award. The agency explained how
this error occurred, and promised to pay complainant an additional sum
of $424.24 to correct its error. Therefore, the agency determined that
it fully complied with the settlement agreement.
On appeal, the agency elaborates the arguments presented in its March 14,
2003 correspondence to complainant, and insists that because complainant
failed to notify the EEO Director in writing, her claim is untimely
and the Commission has no jurisdiction. The agency also provides the
Commission with copies of affidavits and other documentation, to verify
its compliance with the above referenced provisions of the settlement
agreement, as well as its payment of additional interest to complainant.
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).
As an initial matter, the Commission notes that complainant did not
submit a written breach claim to the EEO Director; however, we determine
that the agency was nonetheless ultimately aware of the nature of her
claims, as evidenced by its March 14, 2003 correspondence and May 15,
2003 appeal statement. Therefore, we find that the agency had adequate
notice. Moreover, under the circumstances of this case, we find that the
time limit may be waived. See 29 C.F.R. � 1614.604(c). Specifically,
based on her correspondence to the Commission, and appeal statement, we
find that complainant erroneously believed that the settlement agreement
functioned to compel the agency to comply with the remedies outlined in
the AJ's Show Cause Order.
The Commission determines that complainant requests specific
implementation of the provisions of the settlement agreement. We determine
that the agency has substantially complied with these provisions, and
that complainant has accepted these benefits. In specifically addressing
complainant's �breach� claims, we concur with the agency that posting a
notice regarding the AJ's finding of discrimination is not a provision in
the settlement agreement. Furthermore, because the settlement agreement
resolves the captioned complaint, to include the issue of damages, the
agency is no longer obligated to comply with the AJ's order of remedies,
including the notice posting. Therefore, we conclude that the agency
did not breach the settlement agreement when it declined to post the
notice of the finding of discrimination.
Next, based on its March 14, 2003 correspondence, and the affidavits and
documentary evidence submitted on appeal, we find that the agency paid
complainant the monetary amounts indicated in the provisions referenced
above, to include an additional payment to correct an error in computing
the interest in the amount in provision 1. Based on this evidence,
we find that the agency substantially complied with the settlement.
Accordingly, for the reasons set forth above, we AFFIRM the agency's
finding of compliance with the May 10, 2002 settlement agreement, as
set forth in its March 14, 2003 correspondence and appeal statement.
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
March 4, 2004
__________________
Date
1The Commission affirmed the agency's dismissal of two claims regarding
certain non-selections.