01991378
12-07-1999
Janice Hall, Complainant, v. William M. Daley, Secretary, Department of Commerce, Agency.
Janice Hall v. Department of Commerce
01991378
December 7, 1999
Janice Hall, )
Complainant, )
)
v. ) Appeal No. 01991378
) Agency No. 98-54-01190
William M. Daley, )
Secretary, )
Department of Commerce, )
Agency. )
)
DECISION
On December 3, 1998, complainant filed a timely appeal with this
Commission from a final decision (FAD) by the agency dated November 4,
1998, finding that it was in compliance with the terms of the February
12, 1998 settlement agreement into which the parties entered. See 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 29 C.F.R. � 1614.402), 64 Fed. Reg. 37,644, 37,660 (to be codified
and hereinafter referred to as 29 C.F.R. � 1614.504(b)), and EEOC Order
No. 960, as amended.<1>
The settlement agreement provided, in pertinent part, that:
(1) The agency agrees to explore work experience opportunities for
complainant with the Security Branch, the Administrative Services
Division, and the Grants Management Division.
(2) The agency agrees to discuss appropriate training for complainant
every three months, initially, related to complainant's regular position.
(3) The agency agrees to send complainant to budget related courses
during the first six months of this agreement.
(4) Complainant agrees to withdraw her EEO complaint no later than
February 17, 1998 provided that the work experiences in provision (1)
are arranged.
By letter to the agency dated May 28, 1998, complainant alleged that
the agency was in breach of the settlement agreement, and requested that
the agency specifically implement the terms. Specifically, complainant
alleged that the agency failed to arrange complainant's training in
the Security Branch. Complainant was to work in the Security Branch.
According to complainant, the Chief of Facilities Division Services
requested that complainant not work in security but rather suggested
that she would be better off in the warehouse environment allegedly due
to complainant's race.
In its final agency decision (FAD) issued October 1, 1998, the agency
concluded that there was no breach of the settlement agreement for (1)
the alleged breach was cured when the Chief of Facilities Division
Services agreed to place her in her security training and (2) the
Chief was unaware of the settlement agreement at the time he denied
her training and therefore, the agency did not breach the agreement by
disclosing the agreement. This appeal followed.
In her appeal, complainant requests that the Commission find the agency
in breach of the settlement agreement and reinstate her EEO complaint.
The agency has further argued that the settlement agreement is void for
there was no "meeting of the minds." It argues that the Alternative
Dispute Resolution (ADR) program was not aware of the language required
by the agency. The agency attempted to present complainant with another
settlement agreement which included boilerplate language. Complainant
refused to sign the blank settlement agreement for fear that it would
not afford her the same provisions as the one she received from the
ADR program. Complainant was also under the impression that the blank
settlement agreement was a sign that the agency wished to renegotiate.
Since complainant made it known to the agency that she did not want to
be placed in the Security Branch because agency officials made her feel
unwelcome in that department, the agency decided to void the settlement
agreement and reinstate her original EEO complaint.
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.
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.
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 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 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 the settlement agreement is not void
and that the agency should have specifically enforced the settlement
agreement. The agency argues that there was no meeting of the minds
when complainant signed it on February 12, 1998, with a representative
from the agency's ADR Program. We find that the agency fails to meet
its burden of proving the invalidity of the settlement agreement.
At the time the agreement was signed, there was a clear understanding
of the nature of the agreement by both the complainant and the agency.
Therefore, we find that the settlement agreement is considered valid
and enforceable. The unsigned copy of the agreement does not make the
signed agreement invalid. Complainant relied upon the signed agreement
when she withdrew her complaint. The agency has also acted upon the
agreement by initiating the search to provide complainant with one of the
three work experiences which was agreed upon in the settlement agreement.
Therefore, the Commission finds that the agency has failed to show that
the settlement agreement is void.
Thus, upon review of the record, we find that the agency breached
the settlement agreement. The agency was to explore work experience
opportunities for complainant with the Security Branch, the Administrative
Services Division, and the Grants Management Division. The agency
inquired about complainant's opportunity with the Security Branch but was
met with resistance. After this initiation to comply with the settlement
agreement, the agency failed to continue to explore work experience
opportunities for complainant in the areas listed in the agreement.
Further upon review of the record, there is no indication that the agency
provided provisions (2) and (3) to complainant in conjunction with the
settlement agreement. Therefore, the Commission finds that the agency
breached the settlement agreement.
Once a breach is found, as the case herein, 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 the parties entered into the settlement
agreement. Since the provision of the settlement agreement which has
been completed is the withdrawal of the complaint and, at this point,
complainant seeks reinstatement of her EEO complaint, the Commission
finds that reinstatement of the complaint is the appropriate remedy.
CONCLUSION
Accordingly, the agency's decision is REVERSED and REMANDED for further
processing in accordance with the order below.
ORDER
The agency is ORDERED to resume processing of complainant's complaint
from the point processing ceased. The agency shall acknowledge to
complainant that it has received the remanded complaints within thirty
(30) calendar days of the date this decision becomes final.
A copy of the agency's letter of acknowledgment to complainant must be
sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K1199)
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 64
Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter
referred to as 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 64 Fed. Reg. 37,644, 37,659 (1999)
(to be codified and hereinafter referred to as 29 C.F.R. � 1614.409).
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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). 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).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (R1199)
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:
Dec. 7, 1999
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:
_________________________
_________________________
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 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.