0120103600
11-09-2011
Keir R. Shine, Complainant, v. Janet Napolitano, Secretary, Department of Homeland Security (U.S. Coast Guard), Agency.
Keir R. Shine,
Complainant,
v.
Janet Napolitano,
Secretary,
Department of Homeland Security
(U.S. Coast Guard),
Agency.
Appeal No. 0120103600
Agency No. HS-07-USCG-001880
DECISION
Complainant filed a timely appeal with this Commission from a letter of
determination (LD) by the Agency dated July 29, 2010, finding that it was
in compliance with the terms of the 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked
as an Educational Technician at the Agency’s Training Quota Management
Center, Aviation Department, in Chesapeake, Virginia. Believing that the
Agency subjected her to unlawful discrimination, Complainant contacted an
Agency EEO Counselor to initiate the EEO complaint process. On November
16, 2007, Complainant and the Agency entered into a settlement agreement
to resolve the matter. The settlement agreement provided, in pertinent
part, that:
1b.On days when you are ill as a result of your medical condition but are
capable of performing all tasks described in your description of duties,
you may telecommute from your home. Due to the fact that your condition
has been documented by medical professionals, you will not be expected
to provide a doctor's note each time this occurs.
1c. Due to the sporadic nature of your condition, we have not set
limitations on the frequency or duration of your telecommuting periods.
It is expected that you will use your best judgment and discretion in
making use of these accommodations.
1d. Upon deciding to telecommute, you are expected to provide email
notification no later than at the start of your work day to your immediate
supervisor (the Executive Officer in his/her absence) . . . .
By letter to the Agency dated January 28, 2010, Complainant alleged that
the Agency was in breach of the settlement agreement, and requested that
the Agency specifically implement its terms. Complainant alleged that on
January 26, 2010, the Executive Officer (XO), asked her “what are you
able to do (telecommuting) that you are unable to do in the office?”
In its July 29, 2010 LD, the Agency concluded that it did not breach
the terms of the Settlement Agreement.
CONTENTIONS ON APPEAL
Complainant contends that the Agency is misconstruing the terms of
the agreement when it stated that she did not establish that breached
occurred. Specifically, Complainant argues that the question about
her condition or telecommuting were the types of questions she was
attempting to avoid by entering into this settlement agreement. Secondly,
Complainant argues that the Agency has changed the terms of the agreement
by requiring her to email the XO and not her supervisor.
ANALYSIS
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).
In the instant case, we find that Complainant failed to establish that the
Agency breached the terms of the agreement. Complainant did not establish
that when the XO asked her “what are you able to do (telecommuting)
that you are unable to do in the office?” he, or Complainant’s
immediate supervisor, were asking for addition medical documentation.
Further, the XO did not set limitations on the duration or frequency
of the accommodation. We find that nothing in the agreement limits
the Agency’s ability to ask Complainant why she needs to telecommute.
The agreement merely limits the Agency’s ability to ask for any further
medical documentation. Although Complainant argues that she intended
for the agreement to limit the Agency’s ability to ask questions
about her request to telecommute, we find that the plain meaning of
the agreement does not limit the Agency in this way. Also, Complainant
argues on appeal that the Agency changed the terms of the agreement by
no longer requiring her to email her supervisor. She now must contact
the XO when she is telecommuting. We note, however, that Complainant
raises this matter for the first time in her appeal and it is unclear as
to when this change occurred. As such, we remind Complainant that any
allegation of breach of settlement must first be raised to the Agency’s
Director of the EEO office.
CONCLUSION
We find that Complainant failed to establish that the Agency breached
the terms of the settlement agreement as alleged.
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 (S0610)
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 (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
___11/9/11_______________
Date
2
0120103600
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120103600