0120120987
05-03-2012
Glenda B. Harris, Complainant, v. Kathleen Sebelius, Secretary, Department of Health and Human Services, Agency.
Glenda B. Harris,
Complainant,
v.
Kathleen Sebelius,
Secretary,
Department of Health and Human Services,
Agency.
Appeal No. 0120120987
Agency No. HHS-OS-0047-2010
DECISION
Complainant filed a timely appeal with this Commission from a final decision (FAD) by the Agency dated December 5, 2011, finding that it was in compliance with the terms of the settlement agreement into which the parties entered. See 29 C.F.R. � 1614.402; 29 C.F.R. � 1614.504(b); and 29 C.F.R. � 1614.405.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Paralegal at the Agency's Office of Medicare Hearings and Appeals facility in Cleveland, Ohio.
Believing that the Agency subjected her to unlawful discrimination, Complainant contacted an Agency EEO Counselor to initiate the EEO complaint process. On March 17, 2011, Complainant and the Agency entered into a settlement agreement to resolve the matter. The settlement agreement provided, in pertinent part, that:
As soon as operationally practical, [the Agency shall] provide and add eighty (80) hours of annual leave to [Complainant's] existing accrued annual leave balance.
By memorandum dated June 27, 2011, the Human Capital Management Division informed Complainant that it could not change Complainant's leave balance to provide her with the 80 hours of annual leave as agreed to in the settlement agreement. In the alternative, she was notified that the Agency planned to provide her with 80 hours in the form of a time-off award. Complainant responded to the notice via email on July 12, 2011, explaining that she did not accept the award leave in lieu of the annual leave. Complainant noted that there were different restrictions on the use of award leave which were not acceptable. Further, had she been told that she would be granted award leave; she would not have settled the matter for 80 hours. Complainant suggested that the Agency increase the award to 120 hours.
When the Agency did not respond to Complainant's July email, on October 19, 2011, Complainant contacted the Agency's EEO office alleging that the Agency was in breach of the settlement agreement. Specifically, Complainant alleged that the Agency failed to provide her with 80 hours of annual leave as agreed to in the settlement agreement. Complainant indicated that the Agency's proposed alternative was not acceptable because time-off award leave has more limitations and was not as valuable as the agreed upon annual leave. Further, Complainant noted that she had not received a response to her email dated July 12, 2011.
In its December 5, 2011 FAD, the Agency concluded Complainant's contact regarding the alleged breach was untimely. The Agency noted that Complainant was made aware of the Agency's inability to provide her with annual leave in June 2011 but she did not contact the Agency's EEO office until October 2011, well beyond 30 days. Further, assuming that Complainant's contact was timely, the Agency indicated that it provided Complainant with 80 hours of leave in the form of a time-off award because it could not provide her with 80 hours of annual leave.
The instant appeal followed.
ANALYSIS
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).
As to the issue of timeliness, we note that the Agency made Complainant aware of its plan to provide her with award leave in lieu of annual leave in June 2011. In July 2011, Complainant promptly responded to the Agency's memorandum and requested that the Agency provide her with 120 hours of award leave, noting that award leave had more restrictions and was less valuable than annual leave. The Agency did not respond to Complainant's July e-mail. In October 2011, Complainant followed up with an email to the EEO office indicating that the Agency may now be in breach of the agreement. In response, on October 28, 2011, an EEO Official noted to Complainant that management indicated that "the 80 hours were placed in your account about a month ago."
A review of the record does not indicate when Complainant knew or should have known of the actual breach. While the Agency may have indicated what it was thinking of doing in June, the actual award leave did not appear in Complainant's account until "about a month prior" to October 28, 2011, when she received the email from the EEO Official. Where, as here, there is an issue of timeliness, "[a]n agency always bears the burden of obtaining sufficient information to support a reasoned determination as to timeliness." Guy, v. Dep't of Energy, EEOC Request No. 05930703 (Jan. 4, 1994) (quoting Williams v. Dep't of Def., EEOC Request No. 05920506 (Aug. 25, 1992)). In addition, in Ericson v. Dep't of the Army, EEOC Request No. 05920623 (Jan. 14, 1993), the Commission stated that "the agency has the burden of providing evidence and/or proof to support its final decisions." See also Gens v. Dep't of Def., EEOC Request No. 05910837 (Jan. 31, 1992).
Turning to the merits of Complainant's claim of breach, in the instant case, we find that the Agency has in fact breached the settlement agreement. It is clear that the parties agreed that Complainant would be given 80 hours of annual leave, not award leave. Complainant correctly points out that annual leave and award leave are not equivalent. As such, Commission finds that the Agency has breached the settlement agreement.
The Commission also notes that the Agency asserted in its Memorandum dated June 27, 2011, that it could not provide Complainant with the 80 hours of annual leave as agreed to in the settlement agreement. The Memorandum stated that this determination by the Agency's Human Capital Management Division was based on conversations with the Defense Finance and Accounting Services. The Commission finds that the Agency's record does not include any evidence such as an affidavit or statement from either an individual from the Human Capital Management Division or the Defense Finance and Accounting Services to support such a statement in the Memorandum. Upon review, the Commission finds that the Memorandum alone is insufficient to prove that the Agency could not provide Complainant with 80 hours of annual leave as agreed. See Iglesias v. U.S. Postal Serv., EEOC Request No. 0520110503 (Mar. 30, 2012) (finding that the Agency failed to meet its burden in providing proof that it could not implement the settlement agreement).
CONCLUSION
Accordingly, the Commission REVERSES the Agency's Determination finding it was in compliance with the Agreement and REMANDS this matter to the Agency for further processing in accordance with the Order below.
ORDER
Within thirty (30) days of the date this decision becomes final, the Agency shall replace the 80 hours of award leave provided to Complainant under the terms of the settlement agreement with 80 hours of annual leave.
In the alternative, the Agency may, in writing, provide Complainant with the option of reforming the settlement agreement to provide for 120 hours of award leave in lieu of the agreed upon 80 hours of annual leave. If Complainant accepts this reformation to the settlement agreement, the Agency shall award Complainant the 40 additional hours of award leave within thirty (30) calendar days of its notice of her acceptance.
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), 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
May 3, 2012
__________________
Date
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0120120987
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120120987