Eugenia Hurd, Complainant,v.Daniel R. Glickman, Secretary, Department of Agriculture, Agency.

Equal Employment Opportunity CommissionJul 20, 2000
01986774 (E.E.O.C. Jul. 20, 2000)

01986774

07-20-2000

Eugenia Hurd, Complainant, v. Daniel R. Glickman, Secretary, Department of Agriculture, Agency.


Eugenia Hurd, )

Complainant, )

)

v. ) Appeal No. 01986774

) Agency No. 970998

Daniel R. Glickman, )

Secretary, )

Department of Agriculture, )

Agency. )

____________________________________)

DECISION

The Commission finds that the agency decision dated May 31, 1998, which

found that the agency was in compliance with the terms of the August 9,

1996 settlement agreement, was proper.<1> See 64 Fed. Reg. 37,644,

37,659, 37,660 (1999)(to be codified and hereinafter referred to as

EEOC Regulation 29 C.F.R. � 1614.402); 29 C.F.R. � 1614.504(b); and 64

Fed. Reg. 37,644, 37,659 (1999)(to be codified at 29 C.F.R. � 1614.405).

The settlement agreement provided, in pertinent part, that:

The Agency agrees to:

. . .

Have the Forest Administrator Officer [FAO] intervene in disputes which

arise between the Complainant and her first and second line supervisors.

In the [FAO's] absence, or if he's unsuccessful in resolving the

disputes, the Deputy Forest Supervisor [DFS] will intervene. It is

mutually agreed that requests for intervention will be limited to

those instances where the complainant and her work supervisors have

attempted to work out a mutually acceptable solution to the matter in

dispute but have been unsuccessful;

Hold the Complainant's first and second line work supervisors

responsible for treating the Complainant in a professional manner

. . .;

. . .[W]ithin thirty calendar days from October 15, 1996, provide and

pay for a training session on Multiple Sclerosis to all employees in

the Budget and Finance Staff Group of the Idaho-Panhandle National

Forests. This session will be open to all employees on the Forest.

The [FAO] will participate in the training session as a facilitator.

The training will be conducted by a medical professional with good

knowledge of the effects of Multiple Sclerosis, to be mutually agreed

upon by the Complainant and [FAO]. The [FAO] and the Complainant,

or her union representative, will mutually develop an outline of the

subject matter to be covered by the medical professional.

Both Parties agree . . .

. . .

To cooperate and communicate in good faith and to abide by the terms

of the agreement;

To declare this complaint resolved through this Settlement

Agreement. . .;

. . .

. . . [T]he agency will, within 15 calendar days, provide the Complainant

a written notice explaining/ outlining the specific actions taken to

implement the agreement. . . .

By letter to the agency dated July 22, 1997, complainant alleged that

the agency was in breach of parts of the settlement agreement, and

she requested that the agency implement the terms of the agreement.

Specifically, complainant alleged that her supervisors and the FAO did

not like or support the agreement, she was not treated with respect or

decency, and the Multiple Sclerosis training was a last minute inquisition

�to try to get the trainer to say something that would disprove [her]

condition in some way.� Specifically, complainant alleged that the

agency used the training session to show she was not really disabled.

She also alleged that her supervisor studies and watches her all the time,

she is burdened with more specific requirements than those articulated

in the settlement agreement, and she never received the notice explaining

or outlining the specific actions to implement the agreement.

In the May 31, 1998 decision, the agency concluded that it was in

compliance with the terms of the settlement agreement. First, the agency

found that complainant had not asked the FAO to intervene in disputes

with complainant and her supervisor and that the DFS repeatedly met with

complainant and her supervisor to ensure communication between the two.

Also, the agency found that management took appropriate measures to

address the supervisors' behavior towards complainant. Next, the agency

found that the training session was held as provided by the settlement

agreement and that a notice was sent to all employees. In addition, the

agency found that complainant did not state how the agency breached Part

3, Sections 3 and 4 of the agreement. Finally, the agency found that it

documented and completed an action plan and that complainant was provided

a copy when the agency responded to her claims of noncompliance.

Volume 64 Fed. Reg. 37,644, 37,656 (1999)(to be codified and hereinafter

referred to as 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 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).

Pursuant to 64 Fed. Reg. 37,644, 37,660 (1999)(to be codified and

hereinafter referred to as 29 C.F.R. � 1614.504(b)), an agency has

35 days from the receipt of a claim of breach to resolve the matter.

The Commission interprets that provision to mean that an agency has

35 days within which to cure any breach that has occurred. See Byrd

v. Department of Agriculture, EEOC Appeal No. 01961893 (July 3, 1997);

Covington v. United States Postal Service, EEOC Appeal No. 01913211

(September 30, 1991).

According to the statement of the DFS, he continuously participated in

meetings with complainant and her supervisors to resolve issues. In her

October 8, 1997 letter explaining her complaint, complainant stated,

�Over the course of the last year and 2 months, any disputes were taken

up in meetings with [the DFS]. He encouraged me to work with them all,

. . .� Also, in her journal, complainant acknowledged that she was not

able to meet with the DFS on only two occasions. The first occasion

occurred when the DFS was on vacation. The second occasion was when

the DFS was not available on July 21, 1997, but he was available two

days later. Complainant did not meet with the DFS on July 23, 1997,

because she filed a breach of settlement claim against the agency.

Since it appears that the DFS intervened in conflicts between complainant

and her supervisors when requested, the agency has complied with Part 1,

Section 2 of the agreement.

Next, complainant alleged that she is not treated professionally by

her supervisors. In his statement, the DFS stated that he and her

supervisor took steps to address this type of inappropriate behavior.

Afterwards, the supervisors treated her in a professional manner.

In her letter explaining the complaint, complainant acknowledged the

DFS's role in handling the problem with her supervisors. The agency's

action is in compliance with the agreement.

Regarding Part 1, Section 4 of the agreement, complainant alleged that

the one day notice of the training session was not in the spirit of

the settlement agreement and that the session was a negative event.

The settlement agreement specifically stated that the training session

would be open to all employees and would be conducted by a medical

professional who would have good knowledge of the effects of the disease,

would be mutually chosen by the complainant and FAO, and would follow a

mutually developed outline designed by the complainant and FAO. According

to agency email messages in the record and complainant's statements,

the agency held a Multiple Sclerosis training for all employees.

According to electronic messages between the agency and complainant,

complainant participated in the selection and programming of the training

session. In an email dated November 7, 1996, the agency gave employees

in the field notice about the program on November 8, 1996. The program

provided employees a setting to ask the medical professional questions

about the disease. Therefore, the agency complied with the agreement.

In addition, complainant did not explain how the agency breached Part 3,

Sections 3 or 4 of the settlement agreement. She only stated that the

agency breached Section 3 when it failed to cooperate or communicate

with her in good faith and that the agency breached Section 4 when it

put more specific requirements on complainant than those articulated in

the agreement. Complainant's July 23, 1997 and October 8, 1997 letters

fail to explain these claims. Without further explanation on how the

agency breached these settlement provisions, the Commission finds no

evidence of breach.

Finally, complainant alleged that she did not receive the action plan

within 15 days of the implementation of the agreement as agreed in Part

3, Section 6 of the settlement agreement. Specifically, in her July 22,

1997 letter to the agency, complainant stated that neither she nor her

representative remembered receiving the action plan. She wanted the

agency to check its records to verify if she received the action plan

and to send her a copy. Also, complainant stated in her October 2, 1997

clarification letter that she did not remember receiving the action plan

and that she believed an EEO counselor had all of the EEO paperwork.

On October 15, 1997, the agency provided a copy of the action plan to

complainant when it responded to her claims of noncompliance. Therefore,

the Commission finds that the agency cured any breach of this settlement

provision by sending complainant a copy of the action plan.

Accordingly, the agency's decision is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0300)

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 64

Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred

to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter

referred to as 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 (S0400)

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:

July 20, 2000

____________________________

Date Carlton M. Hadden, Acting Director

Office of Federal Operations

CERTIFICATE OF MAILING

For timeliness purposes, the Commission will presume that this decision

was received within five (5) calendar days of mailing. I certify that

the decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

_______________ __________________________

Date 1On 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 64 Fed. Reg. 37,644 (1999), where

applicable, in deciding the present appeal. The regulations, as amended,

may also be found at the Commission's website at www.eeoc.gov.