01A30171_r
02-25-2004
Karen K. Purvis, Complainant, v. Donald H. Rumsfeld, Secretary, Department of Defense, Domestic Dependent Elementary and Secondary Schools, Agency.
Karen K. Purvis v. Department of Defense
01A30171
2/25/2004
.
Karen K. Purvis,
Complainant,
v.
Donald H. Rumsfeld,
Secretary,
Department of Defense,
Domestic Dependent Elementary and Secondary Schools,
Agency.<1>
Appeal No. 01A30171
Agency No. 96-ESCLB-001
Hearing Nos. 140-90-98-8031X
220-99-5282X
DECISION
Complainant filed a timely appeal with this Commission from a final
decision (FAD) by the agency dated September 5, 2002, finding that it
was in compliance with the terms of the January 23, 1995 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.
The settlement agreement provided, in pertinent part, that:
Effective January 30, 1995, complainant will be detailed to an
unclassified set of duties to assist the Cafeteria Manager in lieu of
an Assistant Manager's position.
A list of these duties will be provided to complainant no later than
January 27, 1995.
(3) During the detail, complainant will receive orientation on the
various aspects of a Cafeteria Manager's duties and responsibilities.
The complainant's work schedule will be extended as necessary normally
one hour or more per work day.
The complainant's present duty assignment as Food Service worker on the
main dish line will rotate to the salad line on a weekly basis.
When either of the Cafeteria Managers are absent, the complainant will
be assigned those duties and her pay will be adjusted accordingly and
as permitted by the school system Non-Appropriated Fund procedures.
There will be a monthly review of complainant's work performance and
accomplishments on the detail.
According to the record, in June 1995, complainant alleged that the
agency breached the settlement agreement and alleged that she was
the victim of unlawful employment discrimination in reprisal for prior
protected activity.
Thereafter, complainant filed a formal EEO complaint, dated February 6,
1996. Therein, complainant claimed that the agency issued her a less-than-
satisfactory performance evaluation, and failed to provide her training
that was promised in the settlement agreement.
In a final decision dated March 6, 1996, the agency dismissed the
claim regarding the performance evaluation on the grounds of untimely
EEO Counselor contact. The agency dismissed the training claim on
the grounds that it stated the same claim that was previously settled.
The agency further determined that inasmuch as the training claim alleged
breach of a settlement agreement, complainant was advised to appeal the
matter to the Commission.
On appeal, the Commission affirmed the agency's dismissal of the
performance evaluation claim. However, the agency determined that
complainant's claim regarding training denial was improperly dismissed
on the grounds that it stated the same claim that was raised in the
previously settled EEO complaint. The Commission determined that
complainant's training denial claim stated a claim of retaliatory denial
of training subsequent to and in breach of the settlement agreement.
The Commission also determined that the agency erred by failing to
investigate the breach allegations and issuing a determination on the
merits of the allegation. In conclusion, the Commission reversed the
agency dismissal of the claim regarding retaliatory denial of training
subsequent to the signing of the settlement agreement, as well as the
claim that the agency breached the above referenced settlement agreement
by failing to provide promised training. The Commission ordered the
agency to process the breach allegation in conjunction with the reprisal
claim. Purvis v. Department of the Navy, EEOC Appeal No. 01963554
(February 19, 1997).
Upon conclusion of the investigation, complainant requested a hearing
before an EEOC Administrative Judge (AJ), which was held on April
25-26, 2000. On September 14, 2000, the AJ issued an Order, directing
the agency to issue a final agency decision, in accordance with the
Commission's decision, dated February 10, 1997.
At the hearing, complainant asserted that the training was supposed to
last for six months. In addition, complainant asserted that there was a
delay in the start of her training detail and a delay in her receiving
a list of her training duties. Furthermore, complainant stated that
she was not trained in certain areas.
The agency's September 5, 2002 final decision, in response to the AJ's
Order found that the agency did not breach the settlement agreement
and that the agency did not engage in reprisal against complainant.
Specifically, while the agency asserted that there was a delay
in complainant receiving the list of her training duties and the
commencement of her training, the agency stated that this action was
harmless. In addition, the agency stated that she was trained in all
areas provided for by the settlement agreement.
Settlement Breach Claim
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).
The Commission finds that the agency complied with the settlement
agreement. While the agreement provides that complainant's training
detail was to start on January 30, 1995, the record establishes that
the training actually commenced in February 1995; however, complainant
states that the commencement of the training detail was delayed by
only one or two days. Hearing Transcript (HT), 53. In addition, while
complainant asserts that she did not receive the list of her training
duties on January 27, 1995, she states that she did receive them in
February 1995. HT, 55. The failure to satisfy a time frame specified
in a settlement agreement does not prevent a finding of substantial
compliance of its terms. Lazarte v. Department of the Interior, EEOC
Appeal No. 01954274 (April 25, 1996). While there were some minor delays
in commencing complainant's training and providing her with a list of
her training duties, she has not shown that she was harmed by the delay.
In regard to complainant's assertion that the training detail was to
last for a period of six months, HT, 31, the agreement is silent as to
its duration. In addition, complainant asserts that she was trained in
February 1995 and March 1995. HT, 30. While complainant asserts that
there were other areas in which she did not receive training, she does
not specify what areas. HT, 55. In addition, E1 (a cafeteria manager),
testified that she trained complainant in all areas of her duties, at the
time, with the exception of her supervisory responsibilities. HT, 80.
Thus, the Commission finds, for the reasons set forth herein, that the
agency trained complainant in compliance with the settlement agreement.
Reprisal Claim
Complainant can establish a prima facie case of reprisal discrimination
by presenting facts that, if unexplained, reasonably give rise to
an inference of discrimination. Shapiro v. Social Security Admin.,
EEOC Request No. 05960403 (Dec. 6, 1996) (citing McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 802 (1973)). Specifically, in a reprisal
claim, and in accordance with the burdens set forth in McDonnell
Douglas, Hochstadt v. Worcester Foundation for Experimental Biology,
425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976),
and Coffman v. Department of Veteran Affairs, EEOC Request No. 05960473
(November 20, 1997), a complainant may establish a prima facie case of
reprisal by showing that: (1) he or she engaged in a protected activity;
(2) the agency was aware of the protected activity; (3) subsequently,
he or she was subjected to adverse treatment by the agency; and (4) a
nexus exists between the protected activity and the adverse treatment.
Whitmire v. Department of the Air Force, EEOC Appeal No. 01A00340
(September 25, 2000).
The Commission finds that complainant failed to establish a prima
facie case of reprisal discrimination. Specifically, complainant has
not shown that she was subjected to adverse treatment by the agency.
While complainant asserts that she was denied training, the Commission
finds that complainant was not denied training, but instead was the
recipient of agency training following the execution of the above
referenced settlement agreement. Complainant has not shown that she was
subjected to adverse treatment and has therefore failed to establish a
prima facie case of reprisal discrimination.
Accordingly, the agency's decision finding no breach of the settlement
agreement and no discrimination is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 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 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 (S0900)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
2/25/2004
Date
1This case originally named the Department
of the Navy as the agency. The agency notes on appeal, however, that
the agency is now correctly identified as the Department of Defense,
Dependent Elementary and Secondary Schools.