0120131267
06-19-2013
Katherine L. Canepa-Stewart, Complainant, v. Dan M. Tangherlini, Acting Administrator, General Services Administration, Agency.
Katherine L. Canepa-Stewart,
Complainant,
v.
Dan M. Tangherlini,
Acting Administrator,
General Services Administration,
Agency.
Appeal No. 0120131267
Agency No. 12RI-PBS-KCS-01
DECISION
Complainant filed a timely appeal with this Commission from a final agency decision (FAD) by the Agency dated January 18, 2013, finding that it was in compliance with the terms of a January 24, 2012 settlement agreement. See 29 C.F.R. � 1614.402; 29 C.F.R. � 1614.504(b); and 29 C.F.R. � 1614.405.
BACKGROUND
During the period at issue, Complainant was employed as a Fire Protection Engineer (FPE) at the Agency's Public Building Service, New England Region, in Boston, Massachusetts.
On January 24, 2012, Complainant and the Agency entered into a settlement agreement to resolve a matter that had been pursued in the EEO process. The settlement agreement provided, in pertinent part, that:
1. Assignment of Tenant Improvement in High Rise Buildings
..........
b. This agreement reflects that the projects previously assigned to [named FPE] were redistributed November 29, 2011 in the following manner: The Employee has the following projects: O'Neill 11th Project, JFK Window Project, Andover IRS Project, and MC Smith Project, while [another named FPE] has Van Buren Project, Madawaska Project and OSHA Hartford Project.
2. Reviewing/Commenting on Other FPE's Projects:
a. if someone is asked a general fire protection engineering question, the FPE will inquire as to whether or not there is an FPE assigned to the project in which the question(s) pertains. If so, then the FPE will respectfully refer the individual(s) asking the question to the FPE assigned to that project, advising that if they have any concerns, they should speak to the Building Operations & Tenant Services Officer directly.
b. If an FPE is on leave, the alternate FPE will review only the FPE's comments and/or response of the A/E firm's comments with respect to the FPE's comments.
c. If a temporarily assigned FPE disagrees with what the FPE assigned to the project has commented on, or if the temporary FPE feels that something was missed (or other mistake or suggestion), the alternate FPE should send an email to the FPE assigned to that job so they have an opportunity to address the issue(s). If the temporary FPE is asked to take a conference call for the FPE on leave, the temporary FPE should only address FPE comments and not imply/say anything else. The assigned FPE will have the final say on such matters over the temporarily assigned FPE. The clause does not apply in an unusual/emergency situation where the information sought is of such a time sensitive nature that waiting to hear from the assigned FPE is not practice; in such cases the temporarily assigned FPE will work closely with the Building Operations & Tenant Services Officer to resolve the issue. In addition, in such unusual/emergency situations, the Building Operations & Tenant Services Officer will make a good faith attempt to contact the assigned FPE via electronic means (email or text), and allow a reasonable period of time given the emergency for the assigned FPE to respond, prior to taking action. In all cases but extreme emergencies, a reasonable period of time is defined as two hours. In extreme emergencies, a reasonable period of time will be determined by considering all factors involved regarding the situation.
3. Trust/Policy/Emails:
a. Any changes in existing policies or office procedures will be thoroughly communicated to the FPE staff. Discussions about any individual policy misunderstandings should be communicated directly, off-line, in private, with that individual FPE. The Building Operations & Tenant Services Officer encourages open and effective communication, and will continue his "open door" policy for any questions/concerns by the staff.
By letter to the Agency dated December 16, 2012, Complainant alleged that the Agency breached provisions 1.b., 2.a., 2.b., 2.c. and 3.a. of the subject settlement agreement. Specifically, Complainant alleged that in regard to provision 1.b, the Agency failed to assign the O'Neill 11th project, JFK Window Project, Andover IRS project, and MC Smith project to Complainant, while a named FPE had the Van Buren project, Madawaska project and OSHA Hartford project.
Complainant further alleged that in regard to provision 2.a., her supervisor and a named alternate FPE discussed and offered an opinion regarding the operation of the locks on the 11th floor lobby doors in the O'Neill building without including her. Regarding provision 2.b., Complainant alleged that he Physical Security Specialist consulted with the alternate FPE, not her, regarding the operation of the locks on the 11th floor lobby doors.
Regarding provisions 2.c. and 3.a., Complainant alleged that her supervisor's call for a meeting on December 3, 2012 with her and other FPEs to discuss differing opinions regarding the operation of the locks on the 11th floor lobby doors constituted a breach.
In its January 18, 2013 FAD, the Agency found no breach of provisions 1.b., 2.c. and 3.a. The Agency found, however, that it breached provisions 2.a. and 2.b. Regarding claim 1.b., the Agency determined that Complainant was assigned the O'Neill 11th project, JFK Window project, Andover IRS project, and MC Smith project.
Regarding provision 2.a., the Agency acknowledged that Complainant's supervisor discussed with the alternate FPE regarding the operation of the locks on the 11th floor lobby doors without including her. With respect to provision 2.b., the Agency acknowledged that the alternate FPE should have referred questions related to Complainant's projects to her since she was not on leave during the relevant period.
Regarding provisions 2.c. and 3.a., the Agency stated that Complainant's supervisor sent an email to Complainant to instructing her to contact her fellow FPEs to let them know they were all expected to meet with him concerning issues that were raised during her project but Complainant failed to attend the scheduled meeting. The Agency further noted that the record reflects that Complainant failed to attend a scheduled meeting with her supervisor. Furthermore, the Agency noted although management rescheduled the meeting at Complainant's request, Complainant did not attend the meeting.
Complainant, on appeal, argues that the FAD had incorrectly determined that the Agency had not breached provisions 2.c. and 3.a., and that she failed to attend the December 3, 2012 meeting. Complainant further stated that she was subjected to subsequent act of discrimination when on February 20, 2013, she was handed a written up which a named FPE was asked by her supervisor to provide an opinion regarding her project, a violation of the instant agreement.
ANALYSIS AND FINDINGS
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).
Provisions 1.b., 2.c. and 3.a.
As an initial matter, we note that Complainant does not challenge the Agency's finding of no breach of provision 1.b.
We find, however, that Complainant has challenged the Agency's finding of no breach concerning provisions 2.c. and 3.a. However, the record in this case contains insufficient evidence for us to determine whether a breach of provisions 2.c. and 3.a. has occurred. We note, for example, that the Agency's FAD finding no breach is predicated upon statements from the supervisor. However, the record contains no affidavit from Complainant's supervisor indicating that he purportedly fulfilled the obligations under the terms of the settlement agreement. Given this lack of evidence, we are unable to ascertain whether the Agency complied with provisions 2.c. and 3.a. of the settlement agreement.
Provisions 2.a. and 2.b.
After careful consideration, we find that Complainant met her burden of establishing that the Agency breached provisions 2.a. and 2.b. Therefore, to the extent that it has not already done so, we order the Agency to specifically implement provisions 2.a. and 2.b. consistent with this decision and the Order below.
In summary, based on a review of the record, we AFFIRM the Agency's finding of no breach of provision 1.b. However, we REVERSE the Agency's finding of no breach of claims 2.c. and 3. a. Claims 2.c., 3.a., and the two provisions which the Agency acknowledged breach (Claims 2.a. and 2.b.) are REMANDED to the Agency for further processing in accordance with the ORDER below.
ORDER
The Agency is ORDERED to take the following actions, to the extent that it has not already done so:
1. Within thirty (30) calendar days of the date that this decision becomes final, the Agency shall implement provisions 2.a. and 2.b. of the settlement agreement. The Agency shall provide the Commission with proof of its implementation of provisions 2.a. and 2.b., as set forth in the paragraph below.
2. The Agency shall supplement the record with evidence clearly showing that it has complied with provisions 2.c. and 3.a. of the January 24, 2012 settlement agreement. The supplementation of the record shall include any documentation, such as an affidavit from the Supervisor indicating whether he discussed security matters and issues that were raised during Complainant's project, following the execution of the settlement agreement. Within thirty (30) calendar days of the date this decision becomes final, the Agency shall issue a new decision concerning whether it breached the January 24, 2012 settlement agreement.
A copy of the Agency's new decision must be sent to the Compliance Officer as referenced herein.
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), at 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 (T0610)
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 (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
June 19, 2013
__________________
Date
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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