0120112917
10-18-2011
Gail Gary, Complainant, v. Janet Napolitano, Secretary, Department of Homeland Security, (Federal Emergency Management Agency), Agency.
Gail Gary,
Complainant,
v.
Janet Napolitano,
Secretary,
Department of Homeland Security,
(Federal Emergency Management Agency),
Agency.
Appeal No. 0120112917
Agency No. 06-00089
DECISION
Complainant filed a timely appeal with this Commission, after the Agency
did not issue a determination regarding a claim of breach of a December
10, 2008 settlement agreement. The Commission accepts Complainant’s
appeal. See 29 C.F.R. § 1614.504(b); and 29 C.F.R. § 1614.405.
BACKGROUND
During the period at issue, Complainant worked as a Secretary at the
Agency’s Federal Emergency Management Agency (FEMA) Region II, Response
and Recovery Division in Pennsylvania.
Believing that the Agency subjected her to unlawful discrimination,
Complainant contacted an Agency EEO Counselor to initiate the EEO
complaint process. On December 10, 2008, Complainant and the Agency
entered into a settlement agreement to resolve the matter.
The December 10, 2008 settlement agreement provided, in pertinent part,
that:
……….
2. The parties agree that this agreement strives to focus on providing
Complainant with a meaningful career developmental opportunity that will
equip her with the skills and specific knowledge necessary to perform
in the identified, mission-oriented targeted position, as noted below.
3. The Complainant’s supervisor will request authorization to hire at
least one permanent full-time entry level Stafford Act human services
position in the Disaster Assistance Division for FY10;
4. FEMA will provide the Complainant with a formal training assessment and
plan to assist her to gain the qualifications to seek an entry level human
services position in the Disaster Assistance Division. Within 60 days
of the execution of this settlement agreement by all parties, FEMA will:
a. Designate a person with expertise in human services to serve as the
Complainant’s mentor. The mentor will counsel Complainant to help
her understand the relationship of the training referred to in this
agreement to work of the targeted position.
b. Arrange for an assessment by FEMA’s training officer of the
Complainant’s skill and ability to perform the identified entry level
human services position. The assessment will permit the substitution
of a portion of training, for her already acquired generalized and
specialized human services related experience. The Complainant and her
supervisor will submit her resume, training history, deployment history,
and any other information regarding her current skills and abilities to
be used as part of her assessment.
c. Based on the assessment, the training officer will consult with the
Complainant’s mentor and develop a training plan for the Complainant to
help her successfully qualify and compete for the identified entry level,
career ladder position. Complainant will be given priority consideration,
i.e., if she meets the minimum qualifications for the position, she will
be place on the certificate of eligibles.
d. As appropriate and as agreed to by the Complainant, mentor and
training officer. The training will include online training course(s),
EMI-based training course(s), human services related deployment(s),
human services related assignments at Region III, and any other training
as deemed necessary.
e. The training officer will provide the Complainant, mentor, and her
supervisor with a written copy of the training plan. They will each
have seven (7) calendar days to review the training plan and to submit
written questions or requests for clarification regarding the training
plan contents to the training officer. The training officer will have
seven (7) calendar days to: (1) review and respond to the questions
and/or clarifications; and (2) make any appropriate changes before
finalizing the training plan. The training officer in consultation with
the Complainant’s mentor has final authority regarding the contents
of the training plan. The final training plan will be submitted to
the Complainant and her supervisor for their signature to acknowledge
receipt of the training plan.
5. To avoid frequent minor amendments to this agreement caused
by variation in mission, changes in organizational elements and/or
Complainant’s needs, it is permissible to alter the sequence of training
as outlined in the training plan to allow for learning experiences to
be more responsive to actual work situations.
6. The mentor will recommend human services-related assignments to help
develop Complainant’s knowledge and skills. When Complainant is in
training in accordance with the training plan and/or under the direction
of the mentor, Complainant will be excused from her normal job duties.
7. FEMA will generally allow the Complainant to complete human services
related online and, EMI-based training as set forth in the training plan
during normal business hours, consistent with program availability and
needs of the Agency. When the training plan requires Complainant to
complete training outside of normal business hours, Complainant will
be compensated in accordance with FEMA rules and regulations and/or the
collective bargaining agreement.
8. To the extent that the training plan calls for the performance of a
human services-related deployment to a disaster area or detail (temporary
assignment) to another region, every effort will be made by FEMA to deploy
or detail the Complainant to a temporary duty station with other Region
III personnel. When a human services-related deployment or detail is
offered to the Complainant during the training period, the Complainant
may decline the deployment or detail if other Region III personnel are
not deployed or detailed to the same area. The Complainant acknowledges
that her decision to decline human services-related deployments or details
may impact her successful completion of the training plan by the end of
the training period.
9. The training for human services position as specified in the training
plan will be designed to be completed by Complainant by March 31, 2010.
The Complainant acknowledges that her failure to comply with the terms
of the training plan may impact her ability to compete for a future
human services position.
10. All training and/or implementation concerns will be brought to the
immediate attention of [Human Services Specialist], or her designee in
her absence within ten (10) work days of the knowledge of the specific
concern/issue. The response to that concern/issue will be addressed,
in writing by [Human Services Specialist] or her designee in her absence.
Failure to respond to these concerns will be considered a breach of this
settlement unless the parties mutually agree to extend the time period
to respond to the concern or issue.
11. Although the successful completion of Stafford Act human services
training does not guarantee the Complainant a human services position,
the Complainant will still be required to apply for a human services
vacancy in accordance with FEMA’s hiring rules and practices and
the Complainant will be given priority consideration, as set forth in
paragraph 4(c) of this settlement agreement.
12. Within 60 days of the date of the executed settlement, the Complainant
and her supervisor will jointly revise the FY 2009 work plan during two
meetings facilitated by the Office of Alternative Dispute Resolution.
The work plan will cover the Complainant’s current secretarial position
and will set forth goals, expectations, and timeliness. The work plan
will also specify how the Complainant’s secretarial duties and training
assignments will be allocated. The Complainant’s yearly performance
evaluation(s) will include the evaluation of these duties.
13. When possible and as appropriate, Complainant’s supervisor will
hold staff meetings after 10:00 A.M. in order to facilitate attendance
of the staff meetings by as many members of the staff as possible.
14. Within 45 days of the executed settlement agreement:
a. FEMA will pay Complainant the sum of $2,550.00 (two thousand five
hundred and fifty dollars) as compensatory damages;
b. FEMA will pa the AFGE Representation Fund the sum of $1,800.00 (one
thousand eight hundred dollars); and
c. FEMA will restore to Complainant eighty 80 hours of annual leave and
eighty 80 hours of sick leave.
……….
20. This Agreement shall be binding upon and insure to the benefits of
the parties hereto and their respective heirs, successors, executors,
administrators, agents and assigns.
21. If any disputes arise regarding the implementation and/or breach
of the terms of this settlement agreement, the parties agree to first
seek the assistance of FEMA’s Office of Alternative Dispute Resolution
to resolve any disputes.
By letter to the Director of Office of Equal Rights dated April 22,
2010, Complainant alleged breach of provisions 4.a., 4.b., 4.c., 5,
7, 10, 20 and 21. Specifically, Complainant alleged that she was not
allowed to participate in formal human services related assignments
and/or EMI-based training.
Complainant further alleged that the Human Resources Specialist was never
available when she wanted to talk to her about her training or the Human
Services vacancies; and that her work schedule “was not altered to meet
qualifications of Human Services Training.” Complainant alleged that
she was not given priority consideration for a particular Human Services
position because she “was not on the cert. In fact, I did not receive
notification of any kind until after I spoke with my supervisor before
my performance evaluation.”
The record showed that Complainant contacted Agency management in an
effort for resolution. However, following thirty-five days of receipt of
Complainant’s claim of breach, the Agency did not issue Complainant a
determination on her claim of breach. Therefore, Complainant filed her
appeal with the Commission. We note that the Agency has not responded
to Complainant’s appeal.
CONTENTIONS ON APPEAL
On appeal, Complainant argues that according to the settlement
agreement, she “was to receive training the Human Service Branch,
and have enough training to qualify to be placed on a certification,
a list of illegible applicants. I did not receive training nor become
a qualified candidate for a position in the Human Services Branch.
I never received an official reply to my application. I received an
email notifying me that another candidate had been selected. The other
candidate came from another division in the regional office.”
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. Dep’t of Def., 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. Dep’t 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. U.S. Postal Serv.,
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 the instant case, the Commission determines that the record in
this case contains insufficient evidence for us to determine whether
a breach of the instant settlement agreement has occurred. We note,
for example, that the record contains no documentation concerning
Complainant’s extensive allegations. Moreover, the record contains no
affidavits from the Agency management indicating that they purportedly
fulfilled the obligations under the terms of the settlement agreement.
Given this lack of evidence, and the extensive delineation of alleged
breach claims as articulated by Complainant, we are unable to ascertain
whether the Agency complied with the settlement agreement. Accordingly,
the Agency’s finding of no breach of the December 10, 2008 settlement
agreement is VACATED. This matter is REMANDED to the Agency for further
processing in accordance with the ORDER below.
ORDER
The Agency is ORDERED to take the following action:
The Agency shall supplement the record with evidence clearly showing
that it has complied with December 10, 2008 settlement agreement.
The supplementation of the record shall include any documentation, such as
an affidavit from the Complainant’s supervisor, training mentor, and/or
Human Services Specialist, indicating whether the Agency comply with the
terms of the December 10, 2008 settlement agreement. Within thirty (30)
calendar days of the date this decision becomes final, the Agency shall
issue a new decision concerning whether it breached the December 10,
2008 settlement agreement.
A copy of the Agency’s new decision must be sent to the Compliance
Officer as referenced herein.
IMPLEMENTATION OF THE COMMISSION’S DECISION (K0610)
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 (M0610)
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), at 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 (R0610)
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 (Z0610)
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
October 18, 2011
__________________
Date
2
01-2011-2917
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120112917
9
0120112917