Jan Kirwan, Complainant,v.Ken L. Salazar, Secretary, Department of the Interior, Agency.

Equal Employment Opportunity CommissionFeb 13, 2009
0120073025 (E.E.O.C. Feb. 13, 2009)

0120073025

02-13-2009

Jan Kirwan, Complainant, v. Ken L. Salazar, Secretary, Department of the Interior, Agency.


Jan Kirwan,

Complainant,

v.

Ken L. Salazar,

Secretary,

Department of the Interior,

Agency.

Appeal No. 0120073025

Agency No. NPS060281

DECISION

Complainant filed a timely appeal with this Commission from a final

decision by the agency dated May 17, 2007, finding that it was in

compliance with the terms of the September 13, 2006 settlement agreement

into which the parties entered.

The settlement agreement provided, in pertinent part:

(1) . . . Deputy Superintendent, Lake Mead National Recreation Area

[DS], will make every effort to provide assistance to the Complainant

in her search for a position within the National Park System, for which

she qualifies, including but not limited to the actions described below;

(2) The Complainant will provide a list of not more than five (5)

NPS units which she considers to be viable employment options for a

lateral placement. This list will be provided by the Complainant no

later than thirty (30) days from the date the last signature is affixed

to this document;

(3) For each person identified by the Complainant, [the DS] will

make at least one contact to a member of that Park's staff, that is

equivalent or a counterpart to [the DS'] position, or the selecting

official for the position, to inquire about [complainant's] potential

for lateral placement in that park;

. . . .

(9) [The DS] will ensure that the Complainant is provided with the

details of the investigation that the District Ranger . . . advised the

Complainant had been conducted.[1] The details to be provided to the

Complainant shall include the cause of the investigation and the nature

and finding of the investigation. This information will be provided in

writing to the Complainant by [DS] no later than sixty (60) days from

the date the last signature is affixed to this document;

(10) After providing the information listed in item 9, any information

regarding the investigation against the Complainant shall be sealed

and no reference made of it in her employment file. At no time may any

information from the investigation be used against the Complainant.

By letter to the agency dated December 7, 2006, complainant alleged that

the agency was in breach of the settlement agreement, and requested that

the agency specifically implement its terms. Specifically, complainant

alleged that the agency was in violation of terms (1) and (3) because

the DS only made contact with one individual about a possible transfer.

Complainant further alleged that the DS also violated term (9) by

failing to provide her with the details of the investigation. Finally,

complainant maintains that when the DS informed the Chief Ranger about

the results of the investigation, he violated term (10) of the agreement,

which provided that the investigation should be sealed.

In its May 17, 2007 decision, the agency concluded that the DS had

initiated contact at eight locations, and had also provided complainant

with the details of the investigation by letter dated November 9, 2006.

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 O 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).

In the instant case, we find no evidence that the agency has complied with

term (3) of the settlement agreement which deals with the DS's obligation

to make contact with others regarding a lateral placement for complainant.

Specifically, term (3) above states that "for each person identified by

complainant" the DS should make contact regarding a lateral transfer.

Pursuant to term (2) above, complainant supplied information regarding

five NPS units for possible employment, and the DS was supposed to

follow up with these individuals. By e-mail dated October 13, 2006,

complainant identified the following areas: the Federal Law Enforcement

and Training Center, Timucuan Ecological and Historic Preserve, Canaveral

National Seashore, Fort Pulaski, and Cape Hatteras.2 Although the agency

maintains in its response to complainant's appeal that it complied with

this term, its own documentation reveals that the DS only contacted one

person, and was unable to fulfill his obligations pursuant to this term

because he was out on business or personal leave, or was attending to

other Park business. See Memorandum from Equal Opportunity Manager,

February 14, 2007. The agency has not shown compliance with provision

(3) (which is also inherently part of provision (1)).

We note that complainant has requested $3,500.00 in attorney's fees

for the costs related to pursuing this appeal. Parties who obtain

judgments on the merits of their claim or court-ordered consent decrees

in their favor can receive attorney's fees. Buckhannon Bd. & Care Home,

Inc. v. West Virginia Dept of Health and Human Services, 532 U.S. 598

(2001). The Commission has held that a complainant who receives some

benefit due to a judgment in his or her favor, or in connection with

his or her settlement breach claim, is considered a prevailing party

under Buchkannon. See Spriesterbach v. United States Postal Service,

EEOC Request No. 05990158 (November 27, 2001). Consequently, we find

that complainant is a prevailing party who may be entitled to attorney's

fees related to the adjudication of her breach claim.

As for her claim that the DS failed to comply with term (9), we find that

his letter to complainant dated November 9, 2006 satisfies the obligations

under this term and it is in substantial compliance with this term.

Further, we find sufficient evidence that the letter regarding the

investigation was not placed into complainant's personnel file, or

otherwise used against her in violation of term (10).

CONCLUSION

The agency's decision finding that it was in compliance with provisions

(9) and (10) of the settlement agreement is AFFIRMED, but is REVERSED

with regard to provision (3) and the matter is REMANDED to the agency

to comply with the ORDER herein.

ORDER

Within 30 days of the date this decision becomes final, the agency

shall implement provision (3) of the settlement agreement entered into

with complainant on September 13, 2006. The agency shall provide the

Compliance Officer referenced herein with proof of its implementation

of the agreement.

ATTORNEY'S FEES (H0900)

If complainant has been represented by an attorney (as defined by

29 C.F.R. � 1614.501(e)(1)(iii)), he/she is entitled to an award of

reasonable attorney's fees incurred in the processing of the complaint.

29 C.F.R. � 1614.501(e). The award of attorney's fees shall be paid

by the agency. The attorney shall submit a verified statement of fees

to the agency -- not to the Equal Employment Opportunity Commission,

Office of Federal Operations -- within thirty (30) calendar days of this

decision becoming final. The agency shall then process the claim for

attorney's fees in accordance with 29 C.F.R. � 1614.501.

IMPLEMENTATION OF THE COMMISSION'S DECISION (K1208)

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 (M1208)

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 (T0408)

This decision affirms the agency's final decision/action in part, but it

also requires the agency to continue its administrative processing of a

portion of your complaint. 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 on both that portion

of your complaint which the Commission has affirmed and that portion

of the complaint which has been remanded for continued administrative

processing. 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 your appeal with the Commission, until

such time as the agency issues its final decision on your complaint.

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 (Z1008)

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

February 13, 2009

Date

1 One of the issues in complainant's underlying complaint surrounded

complainant's claim that she had been subjected to an investigation

regarding alleged inappropriate conduct.

2 Complainant also identified Point Reyes National Seashore, Sequoia and

Kings Canyon National Parks, Yosemite National Park and Rocky Mountain

National Park.

??

??

??

??

2

0120073025

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

6

0120073025