0120081105
03-14-2008
Kathleen Barry, Complainant, v. Dr. Donald C. Winter, Secretary, Department of the Navy, Agency.
Kathleen Barry,
Complainant,
v.
Dr. Donald C. Winter,
Secretary,
Department of the Navy,
Agency.
Appeal No. 0120081105
Agency No. 084008500109
DECISION
Complainant filed a timely appeal with this Commission from a final decision by the agency dated November 30, 2007, finding that it was in compliance with the terms of an August 16, 2007 settlement agreement. See 29 C.F.R. � 1614.402; 29 C.F.R. � 1614.504(b); and 29 C.F.R. � 1614.405.
The August 16, 2007 settlement agreement provided, in pertinent part, that:
(b) Management will assist complainant in determining outstanding deliverables and requirements necessary to successfully complete the Leadership Development Initiative (LDI) program on time.
..........
(d) [Supervisory Contracting Officer (SCO)] and [Lieutenant Commander] will provide assistance to complainant in resolving personnel issues.
(e) Management agrees to seek out complainant's side of issues that may arise between complainant and coworkers and/or others.
(f) [SCO] agrees to communicate proactively and timely address issues that may arise. [SCO] understands that such communication may, of necessity, be in the firm of an email or phone call in lieu of in person, due to other emergent issues that may take priority. [SCO] further agrees that during any such communication she shall avoid an adversarial position and shall maintain a professional demeanor and comportment.1
By letter to the agency dated October 22, 2007, complainant claimed breach. Specifically, complainant claimed that the agency breached provisions (b), (d), (e) and (f) of the settlement agreement. Regarding provision (b), complainant claimed that management did not provide her support in completing the LDI program on time. Regarding provision (d), complainant claimed that she "has been trying to resolve an unreasonable requirement implemented by supervisor for over two weeks." Specifically, complainant claimed that because of the end of the fiscal year, her schedule was hectic; and that "in the past, it has been Supervisor's desired practice to phone her if one is late or not coming in. I followed those rules, however, two weeks after the problem, I am told I must email the supervisor upon arrival and departure everyday for an indefinite period." Complainant claimed that she is the only one required to take this action. Regarding provision (e), complainant stated that management did not seek her side of issues concerning the schedule problem. Regarding provision (f), complainant claimed that SCO's communication with her "is placing unreasonable requirements that are embarrassing and humiliating to complainant which are underserved and serve no effective purpose."
In its November 30, 2007 final decision, the agency found no breach. The agency determined that in regard to provision (b), management and complainant worked as promptly as possible to help put in place a plan. The agency stated that during the relevant time, complainant was asked for a list of outstanding requirements and a proposed plan for meeting those requirements. The agency stated that notwithstanding complainant's lack of cooperation, the Counsel put together a rotation in which complainant is currently participating.
Regarding provision (d), the agency determined that complainant's supervisors stated that the plan requiring complainant to email her supervisors upon arrival and departure was the easiest and best way to keep track of the unconventional hours she worked. With respect to provision (e), the agency determined that management did not feel there was anything to seek out from complainant concerning her schedule. Specifically, the agency stated that management felt that it was doing all it could to facilitate complainant's schedule and felt that the plan put in place was reasonable and necessary. With respect to complainant's claim that she was the only employee who had to email her supervisors upon arrival and departure, management stated that complainant's co-worker did not have any problems with their schedule.
With respect to provision (f), the agency stated that management did not feel that helping complainant work out difficulties of tracking her schedule was adversarial or unreasonable.
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).
Provisions (d), (e), and (f)
Generally, the adequacy of fairness of the consideration in a settlement agreement is not an issue, as long as some legal detriment is incurred as part of the bargain. However, when one of the contracting parties incurs no legal detriment, the settlement agreement will be set aside for lack of consideration. See McNair v. U.S. Postal Service, EEOC Appeal No. 01964653 (July 1, 1997); Juhola v. Department of the Army, EEOC Appeal No. 01934032 (June 30, 1994) (citing Terracina v. Department of Health and Human Services, EEOC Request No. 05910888 (March 11, 1992).
The Commission determines that provision (d) which requires the SCO and the Lieutenant "to provide assistance to Complainant in resolving personnel issues," fails to confer on complainant any benefit that she was not already entitled to as a matter of law. Similarly, provision (e) ("management agrees to seek out complainant's side of issues that may arise between complainant and coworkers and/or others") and provision (f) ("[SCO] agrees to communicate proactively and timely address issues that may arise. [SCO] understands that such communication may, of necessity, be in the form of an email or phone call in lieu of in person, due to other emergent issues that may take priority. [SCO] further agrees that during any such communication she shall avoid an adversarial position and shall maintain a professional demeanor and comportment.") also provide nothing more than to which complainant is already entitled. The Commission therefore determines that provisions (d), (e) and (f) are void for lack of consideration. However, because other consideration was exchanged through the other provisions of the agreement, we find that the entire settlement is not invalid but rather reformed without the void provisions (d), (e) and (f).
Provision (b)
Regarding provision (b), the record in this case contains insufficient evidence for us to determine whether a breach of provision (b) of the instant settlement agreement has occurred. Specifically, we find that the agency's letter of determination finding no breach is predicated upon review of the record and statements by the Counsel and other management officials as discussed above. However, the record contains no affidavit from management officials indicating that the agency fulfilled its obligations under the terms of the settlement agreement. Given this lack of evidence, we are unable to ascertain whether the agency complied with provision (b) of the settlement agreement.
Accordingly, the agency's finding of no breach of provision (b) of the August 16, 2007 settlement agreement is VACATED. The matter is REMANDED to the agency for further processing in accordance with the ORDER below.
ORDER
The agency is ORDERED to take the following action, regarding provision (b):
The agency shall supplement the record with evidence clearly showing that it has complied with provision (b) of the August 16, 2007 settlement agreement. The supplementation of the record shall include any documentation, such as an affidavit from management officials, indicating that complainant was provided assistance in determining outstanding deliverables and requirements necessary to successfully complete the LDI program on time. Within thirty (30) calendar days of the date this decision becomes final, the agency shall issue a new decision concerning whether it breached provision (b) of the August 16, 2007 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 (K0501)
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) (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 (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 (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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
March 14, 2008
__________________
Date
1 The settlement agreement also provides for the Contracting Officers to initiate and include complainant in biweekly Contracting Officer meetings; and that complainant would provide recurring workload report to SCO, participate in biweekly Contracting Officer meetings, seek assistance from [Counsel] and other agency personnel regarding the completion of her LDI program, will be more cautious of her mannerisms, will assist management, to the extent feasible, with a project designed to define roles and responsibilities of Project Managers and Acquisition professionals, to communicate proactively and timely address issues that may arise. These provisions are not at issue in the instant appeal.
---------------
------------------------------------------------------------
---------------
------------------------------------------------------------
2
0120081105
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
2
0120081105
7
0120081105