Ethel Keller, Complainant,v.William S. Cohen, Secretary, Department of Defense, (Defense Logistics Agency), Agency.

Equal Employment Opportunity CommissionOct 13, 2000
01992447 (E.E.O.C. Oct. 13, 2000)

01992447

10-13-2000

Ethel Keller, Complainant, v. William S. Cohen, Secretary, Department of Defense, (Defense Logistics Agency), Agency.


Ethel Keller v. Department of Defense (Defense Logistics Agency)

01992447

10-13-00

.

Ethel Keller,

Complainant,

v.

William S. Cohen,

Secretary,

Department of Defense,

(Defense Logistics Agency),

Agency.

Appeal No. 01992447

Agency No. DON-97-62576-002

DECISION

INTRODUCTION

Complainant timely filed an appeal with this Commission from the final

decision of the agency dated January 12, 1999, in which the agency

determined that it had not breached a settlement agreement entered into

on October 13, 1997.<1> See EEOC Regulation 29 C.F.R. � 1614.402;

29 C.F.R. � 1614.504(b); and 29 C.F.R. � 1614.405.

ISSUE PRESENTED

The issue on appeal is whether the agency properly determined that it

did not breach the settlement agreement entered into with the complainant

in October 1997.

BACKGROUND

Complainant filed a formal complaint on September 23, 1997, alleging

discrimination on the bases of race (Black), color (black) and reprisal

(prior EEO activity) when she received a performance rating lower than

she thought she deserved and when she was subjected to a hostile work

environment.

The agency and the complainant entered into a settlement agreement (SA)

on October 13, 1997, which provided, in pertinent part, that:

(2) The Agency will change the complainant's performance standards to

reflect the duties the complainant is performing during the timeframe

of January 1, 1997 to December 31, 1997.

(3) The Agency will continue to pursue job opportunities outside of DAPS

[Defense Automated Printing Service] on the complainant's behalf and

inform the complainant of the opportunities.

(5) The Agency, in accordance with the Federal Code of Conduct which

requires that all employees treat each other with dignity and respect,

will ensure that all employees are informed that an office is a

professional work environment and everyone is expected to be treated

with dignity and respect.

(6) The Agency will provide sensitivity training to all employees.

The SA did not provide that the agency had to act on these provisions

within a specific period of time.

By letter to the agency dated September 12, 1998, complainant alleged

that the agency was in breach of these particular provisions of the SA,

and requested that the agency reinstate the processing of her complaint.

Specifically, complainant alleged that the agency failed to change her

performance standards, failed to pursue job opportunities for her even

after she had provided them with a resume, failed to require that all

employees attend a sensitivity training class, and that in violation

of provision 5, as listed above, she had continued to receive unfair

treatment at her facility. She also made some additional allegations

about discriminatory treatment to which she felt she was currently being

subjected.

In its January 12, 1999 FAD, the agency concluded that it had not breached

the agreement. With respect to provision 2, as listed above, the agency

stated that complainant's performance standards had been changed on

September 25, 1998, and had been signed by complainant on that date.

With respect to provision 3, the agency concluded that it had in fact

pursued job opportunities outside of the agency on complainant's behalf,

but that there were very few jobs available for which she would qualify.

It stated that the agency's efforts on her behalf would continue.

The agency stated that regarding provision 5, the complainant had not

alleged that the agency had failed to inform employees of the matters

detailed in that provision, but rather, that she had alleged that she

continued to receive unfair treatment at the facility. The agency

stated that it was referring these new allegations of discrimination

to the agency's Equal Opportunity Division for further processing.

Provision 6, the agency concluded, was not breached because it found

that the employees at the complainant's facility had received sensitivity

training on October 13, 1998.

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 shall be

binding on both parties. That section further provides that if the

complainant believes that the agency has failed to comply with the terms

of a settlement agreement, the complainant shall notify the Director

of Equal Employment Opportunity of the alleged noncompliance with the

settlement agreement within 30 days of when the complainant knew or

should have known of the alleged noncompliance. 29 C.F.R. � 1614.504(a).

The complainant may request that the terms of the settlement agreement

be specifically implemented or request that the complaint be reinstated

for further processing from the point processing ceased. Id.

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). It is the intent of the parties as

expressed in the contract, and not some unexpressed intention, that

controls the contract's construction. Eggleston v. Department of Veterans

Affairs, EEOC Request No. 05900795 (August 23, 1990); In re Chicago &

E.I. Ry. Co., 94 F.2d 296 (7th Cir. 1938). In reviewing settlement

agreements to determine if there is a breach, the Commission is often

required to ascertain the intent of the parties and will generally rely

on the plain meaning rule. Wong v. U.S. Postal Service, EEOC Request

No. 05931097 (April 29, 1994) (citing Hyon O v. U.S. 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, then its

meaning must be determined from the four corners of the instrument without

any resort to extrinsic evidence of any nature. Id. (citing Montgomery

Elevator v. Building Engineering Service, 730 F.2d 377 (5th Cir. 1984)).

We find that the agency correctly concluded that it had not breached

provision 3. The record contains a description of the efforts undertaken

on complainant's behalf by agency personnel. We find that the agency

complied with the letter of the SA and had undertaken efforts to identify

job opportunities for complainant. We also find that the agency properly

referred complainant's allegations of current discrimination for further

processing under EEOC Regulation 29 C.F.R. �1614.504(c). Therefore,

it properly concluded that provision 5 had not been breached.

With respect to the allegations of breach regarding provisions 2 and 6,

we find that the agency was incorrect when it found it had not breached

the SA. It appears that at the time the complainant wrote her letter to

the agency notifying it of her belief that the SA had been breached,

the agency had not actually fulfilled its responsibilities under

provisions 2 and 6. The Commission previously has held that when a

settlement agreement does not provide a time frame for the performance

of the provisions therein, performance nonetheless is required within

a reasonable amount of time. See Gomez v. Department of the Treasury,

EEOC Request No. 05930921 (February 10, 1994). The determination of

what amount of time is �reasonable� is made on a case by case basis.

We find that by taking almost one year to implement these provisions,

the agency did not act within a reasonable amount of time. See Johnson

v. Department of Agriculture, EEOC Appeal No. 01962834 (December 17,

1996) (failure to issue decision on compensatory damages under settlement

agreement after one year considered breach of the agreement); Campbell

v. Department of Agriculture, EEOC Appeal No. 01966314 (March 11, 1998)

(failure to issue decision on damages after two years considered breach).

In Hall v. U.S. Postal Service, EEOC Appeal No. 01961112 (December 13,

1996), the Commission held that the agency's failure to execute the terms

of a settlement agreement within nine months constituted a breach. In

that case, the agency agreed to designate a specific parking space for

the complainant and erect a sign identifying it as restricted to parking

for disabled individuals, which it failed to do.

In this case, the agency merely had to change the performance standards

of complainant and provide sensitivity training to all employees.

The agency did not have to engage in a complicated calculation of money

damages, nor did it have to rely on complainant to provide it with

documentation to allow it to perform. The record reveals that the agency

scheduled sensitivity training on November 4, 1997, and that the session

was videotaped. It also reveals that the employees were not actually

required to attend a showing of that tape until October 13, 1998,

as evidenced by the signature sheet of the attendees of the course.

There is no evidence in the record to show which employees may have

attended the training on November 4, 1997. Regarding the change in

performance standards, there is nothing in the record that would indicate

that it required almost one year to change the form with complainant's

performance rating. The form, as it appears in the record, would seem

to require at most an hour to complete. We find that the agency's

failure to take the actions required by the settlement agreement until

one year after the execution of the SA constituted a breach because it

did not act within a reasonable amount of time. We also find, however,

that the agency has now implemented provisions 2 and 6 of the SA.

Once a breach is found, as in this case, the remedial relief is either

the reinstatement of the complaint for further processing or specific

enforcement of the settlement agreement. If a complainant's complaint is

reinstated for further processing, then the parties must be returned to

the status quo at the time that the parties entered into the settlement

agreement, which requires that a complainant return any benefits received

pursuant to the settlement agreement. O'Farrell v. U.S. Postal Service,

EEOC Petition No. 04920001 (February 28, 1992). In the present case,

complainant requested that her complaint be reinstated for further

processing. Consequently, on REMAND, complainant shall be advised that in

order to reinstate her complaint, a condition precedent is the return of

any benefits received through the execution of the other provisions of the

SA, such as backpay or overtime pay or any restored sick or annual leave.

In view of this requirement, we therefore give complainant the option,

in accordance with the ORDER below, of either returning the benefits

conferred pursuant to the SA and reinstating the complaint, or keeping

the benefits conferred pursuant to the SA and accepting the agency's

late implementation of the SA.

CONCLUSION

Accordingly, the decision of the agency is REVERSED and REMANDED.

ORDER

The agency is ORDERED to notify complainant of her option to return

to the status quo prior to the signing of the settlement agreement

and having her complaint reinstated, or accepting the agency's late

implementation of the settlement agreement. The agency shall so

notify complainant within thirty (30) calendar days of the date this

decision becomes final. The agency shall also notify complainant that

she has fifteen (15) calendar days from the date of her receipt of

the agency's notice within which to notify the agency of her choice.

Complainant shall be notified that in order to return to the status quo

ante, she must return any benefits received pursuant to the agreement.

The agency shall determine any payment due to complainant, or return

of consideration or benefits due from complainant, within thirty (30)

calendar days of the date this decision becomes final, and shall include

such information in the notice to complainant.

If complainant elects to return to the status quo ante and she returns

any monies or benefits owing to the agency, as specified above, the agency

shall resume processing complainant's complaint from the point processing

ceased pursuant to 29 C.F.R. �1614.108 et seq. If complainant elects not

to return to the status quo ante, i.e., not to return any consideration

owing the agency, the agency shall notify complainant that the case is

considered closed.

A copy of the agency's notice to complainant regarding her options,

including the determination of consideration due or owing, as well

as a copy of either the correspondence reinstating the complaint for

processing or the correspondence notifying complainant that the terms

of the agreement have been fulfilled and the case is considered closed,

must be sent to the Compliance officer, as referenced below.

IMPLEMENTATION OF THE COMMISSION'S DECISION (K0800)

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)(Supp. V 1993). 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 (M0800)

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).

COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION

(R0400)

This is a decision requiring the agency to continue its administrative

processing of your complaint. However, if you wish to file a civil

action, you have the right to file such action in an appropriate United

States District Court WITHIN NINETY (90) CALENDAR DAYS from the date

that you receive this decision. 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 filed your appeal with the

Commission. 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. 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

__10-13-00________________

Date

1 On November 9, 1999, revised regulations

governing the EEOC's federal sector complaint process went into effect.

These regulations apply to all federal sector EEO complaints pending at

any stage in the administrative process. Consequently, the Commission

will apply the revised regulations found at 29 C.F.R. Part 1614 in

deciding the present appeal. The regulations, as amended, may also be

found at the Commission's website at www.eeoc.gov.