Karyn M. Lambert, Complainant,v.Robert M. Pirie, Jr., Acting Secretary, Department of the Navy, Agency.

Equal Employment Opportunity CommissionFeb 8, 2001
01a02716 (E.E.O.C. Feb. 8, 2001)

01a02716

02-08-2001

Karyn M. Lambert, Complainant, v. Robert M. Pirie, Jr., Acting Secretary, Department of the Navy, Agency.


Karyn M. Lambert v. Department of the Navy

01A02716

February 8, 2001

Karyn M. Lambert,

Complainant,

v.

Robert M. Pirie, Jr.,

Acting Secretary,

Department of the Navy,

Agency.

Appeal No. 01A02716

Agency No. 00-60169-001

DECISION

Complainant filed a timely appeal with this Commission from a final

decision by the agency dated March 15, 2000. The agency denied

complainant's request to reinstate her complaint finding that her claim

of breach of the terms of the March 11, 1998 settlement agreement

was untimely raised.<1> See EEOC Regulation 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:

(1) The Human Resources Office Classification Section will work with

complainant's first level supervisor and complainant in developing a

detailed position description.

(2) The EO Advisor will be consulted to develop a sensitivity training

course, ...[and] employee attendance will be mandatory.

(3) Complainant will enroll in the Avionics Core Class,...when funding

is available. If funding is not available by July 31, 1998, this issue

will be reviewed by [the top line supervisor] and complainant to decide

on a new date.

The settlement agreement also includes a provision that complainant was

to contact the agency's EEO office in writing within 30 days of the date

of any alleged violation of any of the above provisions, and request

either compliance with the terms, or reinstatement of the complaint.

In an e-mail communication to the agency EEO office dated May 21, 1998,

complainant stated that the agency failed to comply with any of the

terms of the settlement agreement, and specifically stated that funding

was available for the training referenced in provision 3, but that two

other workers had been selected to attend. In an attached e-mail message

addressed to her first line supervisor, which complainant forwarded to

the EEO specialist, complainant indicated that she was perplexed by the

selection of co-workers, because under the settlement agreement she was to

attend this training as soon as funds were available. The EEO specialist

advised complainant that the settlement agreement stated that if funding

was not available by July 31, 1998, she was to discuss it with the top

line supervisor to decide on a new date, and asked if she had done so.

The record reflects that complainant again contacted the EEO office via

e-mail on November 9, 1999, indicating that she had been hospitalized on

July 28, 1998, for psychiatric problems caused by retaliatory harassment

associated with her attempts to have the settlement agreement enforced.

Complainant requested that her complaint be reinstated on the grounds that

the agency never complied with the terms of the settlement agreement.

The record contains an e-mail from an agency official to complainant

dated December 22, 1999. Therein, the official addressed provisions 1

- 3 of the settlement agreement. Regarding provision 1, the official

stated that development of a detailed position description would be

rendered moot if complainant were reassigned; regarding provision 2, the

official stated that sensitivity training �can still be accomplished;� and

regarding provision 3, the official stated that avionics core training

�would not be beneficial to you� but indicated that complainant might

nonetheless be able to receive such training.

In its March 15, 2000 decision, the agency determined that complainant

failed to inform the EEO office about the alleged breach in a timely

manner, and found that the deadline for timely informing the agency of

settlement breach was August 30, 1998 ( thirty days after the July 31,

1998 date cited in provision 3). The agency further indicated that it

had attempted a resolution, but that complainant rejected the agency

attempts in an e-mail dated January 5, 2000.

On appeal, complainant argues that after her first documented contact with

agency officials on May 21, 1998, she was in constant contact with the

EEO office in attempting to have the agency comply with the settlement

agreement, except during her six week psychiatric hospitalization. The

Commission notes that in response to her constant inquiries, the

agency conducted an investigation of the matter, and issued a report in

November 1998.

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 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).

Regarding the timeliness of complainant's claim of settlement breach,

the Commission notes that in the May 21, 1998 e-mail, complainant

not only reported that the agency failed to initiate compliance with

provisions 1 and 2, but that it was also currently breaching provision

3 because funding was available for the training, and the supervisor

chose two other employees instead of her. Complainant asserted that

following the May 21, 1998 e-mail, she was in constant contact with the

agency's EEO office, through November 1999, in attempts to secure agency

compliance with the terms of the settlement agreement. Following these

continuous unsuccessful efforts, complainant requested that her complaint

be reinstated, as reflected in her November 9, 1999 e-mail to the agency

EEO office. Under these circumstances, the Commission determines that

complainant's breach was timely raised.

Regarding claimant's assertion that the settlement agreement was breached,

the Commission notes that a fair reading of the record reflects that while

funding was available in 1998, the agency selected two employees other

than complainant for training. Additionally, the record reflects that

complainant was never afforded any training in satisfaction in regard

to provision 3. Moreover, the Commission determines that the agency

also breached provisions 1 and 2 of the agreement. As reflected in an

agency e-mail dated December 22, 1999, a detailed position description

(identified in provision 1) was not developed, and sensitivity training

(identified in provision 2) was not established in the Air Traffic

Control Maintenance Section.

Accordingly, we REVERSE the agency's decision and REMAND this matter to

the agency for reinstatement of the complaint from the point at which

processing ceased.

ORDER

Within thirty (30) days of the date that this decision becomes final,

the agency is ORDERED to reinstate the settled matter from the point

processing ceased and to thereafter process the matter in accordance with

Part 1614 regulations. Within thirty (30) days of the date that this

decision becomes final, the agency shall notify complainant in writing

that it has reinstated the settled matter and that it will process the

settled matter in accordance with EEO regulations.

A copy of the letter notifying complainant of the reinstatement of her EEO

matter should be provided to the Compliance Officer as referenced below.

IMPLEMENTATION OF THE COMMISSION'S DECISION (K0900)

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 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 29 C.F.R. � 1614.409.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0900)

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 (R0900)

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:

February 8, 2001

Date Carlton M. Hadden, Director

Office of Federal Operations

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 29 C.F.R. Part 1614 in deciding the

present appeal. The regulations, as amended, may also be found at the

Commission's website at www.eeoc.gov.