01A23437_r
12-04-2003
Martha A. Veal, Complainant, v. Hansford T. Johnson, Acting Secretary, Department of the Navy, Agency.
Martha A. Veal v. Department of the Navy
01A23437
December 4, 2003
.
Martha A. Veal,
Complainant,
v.
Hansford T. Johnson,
Acting Secretary,
Department of the Navy,
Agency.
Appeal No. 01A23437
Agency No. DON-01-57023-91
DECISION
Complainant filed a timely appeal with this Commission from a final
decision by the agency dated May 15, 2002, finding that it was in
compliance with the terms of the December 11, 2001 settlement agreement
into which the parties entered.
The settlement agreement provided, in pertinent part, that:
4(a)(1) COMOPTEVFOR [Commander, Operational Test and Evaluation Force]
agrees to detail Complainant to a set of duties in Mission Information
System (MIS) in increments of 120-days. Complainant understands that
she will return to her previous position description in Information
Resources (IR) once her skills are no longer required in MIS. This set
of duties will include an increase to her current level of activity
and taskings as requested by Complainant. At the end of each 120-day
detail, Complainant and [the Director of Training] will meet to discuss
the prospective next 120-day detail period to determine if any training
will be necessary for Complainant to attend in relation to the next phase
of Complainant's assignment. COMOPTEVFOR will establish performance
standards for the Complainant, according to the above-mentioned set of
duties, if the detail is longer than 120-days.
4(a)(2) COMOPTEVFOR will review all candidates, for appropriateness,
on the Command's Awards Board.
4(a)(3) Complainant will attend meetings with [the Director of Training],
or his designee, regarding MIS development.
4(a)(4) COMOPTEVFOR will review Complainant's previous training to
determine if there is training she could attend that would benefit
COMPTEVFOR within the MIS structure. COMOPTEVFOR will send Complainant
to a course to be determined from among courses such as: Oracle,
C++, and Information Assurance. Parties understand that COMOPTEVFOR
will make the final determination of which course Complainant attends.
Complainant may choose to do this course at college, but she understands
that should she choose to do so, it would be with the understanding that
it be done at night. Complainant will be required to receive a passing
grade in order to receive reimbursement for said course.
By letter to the agency dated April 22, 2002, complainant alleged that the
agency breached the settlement agreement, and requested that the agency
reinstate her EEO complaint. Specifically, complainant alleged that,
"To this date, I have not heard nor seen any results and/or actions
based on the signed agreement."
In its May 15, 2002 final decision, the agency found no breach. Regarding
provision 4(a)(1), the agency determined that it issued complainant her
first 120-day detail in MIS on April 22, 2002. The agency determined
that a delay in the issuance of new critical elements, a work plan,
and the initiation of the 120-day detail itself was caused by the "great
deal of time" it took to ensure that all the critical elements and work
plan objectives were correct for complainant and all other civilians in
the command. The agency said that new critical elements and work plan
objectives were issued to complainant along with the 120-day detail on
Monday, April 22, 2002. The agency mentioned that at that time, the
Directors of Training issued complainant a supplemental sheet entitled,
Task Assignments for complainant for the period April 22, 2002 through
August 19, 2002, that identified all the tasks complainant was expected
to accomplish in detail during this 120-detail.
With respect to provision 4(a)(2), the agency determined that it complied
with this provision. Specifically, the agency found that on April 24,
2002, the Chief of Staff fully reviewed and revised the instruction for
the Awards Board. The agency noted that the revision included changing
the structure of the Awards Board, changing the process in which awards
were approved, and ensuring that the instruction better suits the needs
of the command.
Regarding provision 4(a)(3), the agency determined that the first
two meetings with complainant for planning future MIS development
were rescheduled because complainant was absent from work during
those meetings. The agency noted that a MIS development meeting with
complainant was subsequently rescheduled for May 21, 2002.
Finally, regarding provision 4(a)(4), the agency determined that, in
a letter dated April 22, 2002, the agency sent complainant a tasking
letter in which it identified all the tasks that complainant was
expected to accomplish in her 120-day detail in MIS. The letter asked
complainant to review and concur with the appropriateness of the tasks
and to specify any formal training or other means that would help her
accomplish the goals set forth in the tasking letter. The agency noted
that complainant responded, and the Director of Training evaluated the
training requirements complainant requested, but not all of the training
complainant requested is applicable or complainant has already received
the training. The agency said that, since complainant has not returned
to work, the Director of Training cannot effect any of the training to
satisfy that portion of the settlement agreement. The agency commented
that complainant attended an Oracle Financials General Ledger training
class from February 11, 2002 through February 12, 2002. The agency
said the training was to help bring complainant up to speed with the
implementation effort of Oracle Financials.
On appeal, complainant argues regarding provision 4(a)(1) that once
detailed into the MIS development position, she was not afforded the
same level of opportunities provided to other MIS personnel. Regarding
provision 4(a)(2), complainant argues that the agency has failed to
perform a review of candidates on the Awards Board, as provided in
this provision.
Regarding provision 4(a)(3), complainant argues that the agency should
not have scheduled meetings in May 2002, on MIS development because
it knew that she was absent and would be on "Medical Emergency Leave"
indefinitely. Complainant contends that she submitted a leave slip
signed on April 15, 2002, and was approved with the understanding that
her "doctors did not want me returning to work until further notice."
Further, complainant maintains that the agency held MIS development
meetings in her absence prior to May 7, 2002.
Regarding provision 4(a)(4), complainant argues that she provided the
agency with a list of Oracle training courses and other training that
she felt would benefit her in performing the duties outlined in the
tasking letter. Complainant contends that, although she attended an
Oracles Financial General Ledger class, the agency offered her this
course as "a matter of formality to avoid the loss of money due to an
empty slot planned for someone else."
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).
Provision 4(a)(1)
Provision 4(a)(1) provides that the agency will agrees to detail
complainant to a set of duties in MIS in increments of 120-days.
The agency contends that it complied with this provision when it issued
complainant her first 120-day detail in MIS on April 22, 2002 along
with new critical elements and work plan objectives. Additionally,
the agency contends that complainant was afforded the same level of
opportunities as other MIS employees, considering her technical expertise.
The record contains a copy of the Performance Appraisal Form, which
indicates that complainant was temporarily detailed to the MIS Project
from April 22, 2002 to August 19, 2002. Also, the record contains
a copy of complainant's critical elements and work plan objectives.
The Commission finds no evidence to show that the detail provided to
complainant was somehow inadequate. Therefore, we find that complainant
has failed to show that the agency breached provision 4(a)(1) of the
settlement agreement.
Provision 4(a)(2)
Provision 4(a)(2) provides that the agency will review all candidates,
for appropriateness, on the Command's Awards Board. The agency contends
that it complied with this provision by changing the structure of the
Awards Board and changing the process in which awards are approved.
However, we note that the terms of this provision does not address the
structure of the Awards Board or the process in which awards are approved.
Upon review, we find that there is insufficient evidence in the record
addressing whether the agency evaluated the Awards Board candidates for
appropriateness, as provided by the agreement. Consequently, we shall
remand the matter so that the agency may show that it evaluated all the
Awards Board candidates for appropriateness.
Provision 4(a)(3)
Provision 4(a)(3) states that complainant will attend meetings with
the Director of Training, or his designee, regarding MIS development.
The agency contends that the meetings scheduled in May 2002 regarding
MIS development had to be rescheduled because of complainant's absence
from work. Complainant responds that the agency should not have scheduled
any MIS meetings during this period because she was on indefinite leave
in May 2002. Complainant further contends that the agency held MIS
development meetings in her absence prior to May 2002. The agency denies
that any MIS development meetings were held. Upon review, we find that
complainant failed to show that any meetings regarding MIS development
were held in her absence. Furthermore, there is no requirement that
complainant attend all MIS development meetings. There is no evidence
of bad faith by the agency regarding implementation of this provision.
Therefore, we find that complainant failed to show that the agency
breached provision 4(a)(3) of the settlement agreement.
Provision 4(a)(4)
Provision 4(a)(4) states that the agency will review complainant's
previous training to determine if there is training she could attend that
would benefit the agency within the MIS structure. The agency contends
that it complied with this provision. The Commission finds that the
agency conducted the review of complainant's previous training and
subsequently provided Oracle training. Complainant was not permitted
to choose, under the settlement agreement, which courses she wished
to attend. The Commission finds that the agency has complied with
provision 4(a)(4) of the settlement agreement.
The agency's decision finding no breach of provisions 4(a)(1), 4(a)(3),
and 4(a)(4), of the settlement agreement is AFFIRMED. The agency's
decision finding no breach of provision 4(a)(2) of the settlement
agreement is VACATED and the matter is REMANDED to the agency for further
processing in accordance with this decision and applicable regulations.
ORDER
The agency shall put evidence into the record showing that it complied
with provision 4(a)(2) of the December 11, 2001 settlement agreement.
The agency shall provide evidence showing that it evaluated all the
Awards Board candidates for appropriateness. The agency, within 30
calendar days of the date this decision becomes final, must issue a
new decision addressing whether the agency has complied with provision
4(a)(2) of the settlement agreement. A copy of the 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 (T0900)
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 (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
December 4, 2003
______________________
Date