Ragina L. Sanders, Appellant,v.Robert E. Rubin, Secretary, Department of the Treasury, Agency.

Equal Employment Opportunity CommissionJan 20, 1999
01981767 (E.E.O.C. Jan. 20, 1999)

01981767

01-20-1999

Ragina L. Sanders, Appellant, v. Robert E. Rubin, Secretary, Department of the Treasury, Agency.


Ragina L. Sanders v. Department of the Treasury

01981767

January 20, 1999

Ragina L. Sanders, )

Appellant, )

)

v. ) Appeal No. 01981767

) Agency Nos. 97-2254

Robert E. Rubin, ) 97-2239

Secretary, )

Department of the Treasury, )

Agency. )

_________________________________)

DECISION

Appellant filed the instant appeal from the agency's December 11, 1997

decision finding that the agency had not breached a settlement agreement

between the parties entered into on July 23, 1997.

The settlement agreement provided (in relevant part):

1. The Agency agrees to:

A. Training comparable to all other security specialists in an orderly

expeditious and continuous manner.

C. Set specific rotational schedule for specialists to serve as team

leaders

D. Promote positive work environment, ie. the plant manager will meet

with security staff in an effort to foster a positive work environment.

E. Cross training to afford [appellant] the opportunity to work in

other areas listed on her position description. Her co-workers will be

cross-trained into the "lock & key" area during FY-98.

Appellant subsequently alleged that the agency breached the settlement

agreement. Appellant's breach allegations can be fairly characterized as

alleging that the agency breached provisions 1(A), 1(C), 1(D), and 1(E)

of the agreement. In the decision the agency found that the agency had

complied with the agreement.

EEOC Regulation 29 C.F.R. �1614.504(a) provides that any settlement

agreement knowingly and voluntarily agreed to by the parties shall be

binding on both parties. If the complainant believes that the agency

has failed to comply with the terms of a settlement agreement, then the

complainant shall notify the EEO Director of the alleged noncompliance

"within 30 days of when the complainant knew or should have known of

the alleged noncompliance." 29 C.F.R. �1614.504(a). The complainant

may request that the terms of the settlement agreement be specifically

implemented or request that the complaint be reinstated for further

processing from the point processing ceased. Id.

Settlement agreements are contracts between the appellant and the agency

and it is the intent of the parties as expressed in the contract, and not

some unexpressed intention, that controls the contract's construction.

Eggleston v. Department of Veterans Affairs, EEOC Request No. 05900795

(Aug. 23, 1990); In re Chicago & E.I. Ry. Co., 94 F.2d 296 (7th

Cir. 1938). In reviewing settlement agreements to determine if there is

a breach, the Commission is often required to ascertain the intent of the

parties and will generally rely on the plain meaning rule. Wong v. United

States Postal Service, EEOC Request No. 05931097 (Apr. 29, 1994) (citing

Hyon v. United States Postal Service, EEOC Request No. 05910787 (Dec. 2,

1991)). This rule states that if the writing appears to be plain and

unambiguous on its face, then its meaning must be determined from the

four corners of the instrument without any resort to extrinsic evidence

of any nature. Id. (citing Montgomery Elevator v. Building Engineering

Service, 730 F.2d 377 (5th Cir. 1984)).

As an initial matter we address appellant's argument that she was forced

to participate in the mediation process. Appellant has not specifically

claimed that she did not voluntarily enter the agreement. Even if

appellant felt forced to participate in a mediation process, that is

not the same situation as being forced to enter a settlement agreement.

The Commission finds that appellant has not provided persuasive evidence

showing that her signature on the settlement agreement was anything but

voluntary. Therefore, the Commission shall not set aside the agreement

as involuntarily entered into by appellant.

Appellant has not challenged the agency's framing of the breach

allegations. Therefore, we find that the agency properly framed the

breach allegations as alleging that the agency breached provisions 1(A),

1(C), 1(D), and 1(E) of the settlement agreement.

Provision 1(A)

The agency has supplied evidence which the agency claims shows that

appellant received training during the period of time after the agreement

was entered into which is comparable to the training other security

specialists received during the period of time after the agreement was

entered into. Appellant's argument on appeal shows that she believed,

when she entered the agreement, that provision 1(A) required the agency

to provide training to appellant comparable to training received by other

security specialists before and after the agreement was entered into.

Appellant argues on appeal that the agency "centered on a limited time

frame, which gave the deceitful appearance that I have received more

training than my peers."

The Commission finds that the plain language of the agreement does not

indicate whether the training appellant will receive will be comparable as

to: (1) all training received by security specialists after the agreement

was entered into (what the agency believes); or (2) all training received

by security specialists prior to entering the agreement in addition to

all training received by security specialists after the agreement was

entered into (what appellant believes). Thus, appellant apparently

believed when she entered the agreement that provision 1(A) required

the agency to provide her with training that would raise her training

to a level comparable (and maintain her at that comparable level) with

training that had already been received by security specialists at the

time the agreement was entered into. There is no extrinsic evidence

which provides clarification of provision 1(A).

The Commission finds that the parties did not have a meeting of

the minds regarding provision 1(A) of the agreement. There is no

indication that either party entered this provision in bad faith.

The language of provision 1(A) is ambiguous. Therefore, we find that

neither party entered into provision 1(A) knowingly and that provision

1(A) is void and is stricken from the agreement. See Gorman v. National

Science Foundation, EEOC Appeal No. 01932369 (May 26, 1993) (settlement

agreements are reformable). The entire settlement agreement may not be

voided in the instant matter because benefits have already been provided

to appellant that can not be returned.

Provision 1(C)

The agency found that on August 23, 1996, almost a year prior to the

entering of the agreement, the Chief, Office of Security, approved the

establishment of a rotational schedule to be based on seniority for six

month acting team leader assignments. In memorandums dated October 30,

1997 and November 17, 1997 the Plant Manager stated that on August 23,

1996 the Chief approved the establishment of a rotational schedule

to be based on seniority for six month acting team leader intervals.

The Plant Manager stated that appellant was the junior member and that

she was scheduled to be acting team leader on November 20, 1997.

The August 23, 1996 memorandum from the Acting Division Manager assigned

persons to two Acting Team Leader positions for six months, but did not

set forth a rotational schedule. Although the settlement agreement does

not require that a rotational schedule be put into writing or communicated

to appellant, there must be some persuasive evidence showing that such a

schedule exists. On appeal appellant claims that she was not appointed

team leader on November 20, 1997 and that Person A has been team leader

from May 19, 1997 to the date of the instant appeal. The Commission

finds that the agency has not submitted persuasive evidence showing that

it has set a "specific rotational schedule for specialists to serve as

team leaders." Therefore, we shall remand provision 1(C) so the agency

can supplement the record with a written "specific rotational schedule."

Provision 1(D)

On appeal appellant admits that a meeting was held between the Plant

Manager and the police and security branch. Appellant argues that the

meeting was not mandatory and that appellant's supervisor and specialists

on her team who created the hostile environment were not present.

Appellant further argues that the Plant Manager did not address the

hostile work environment in the office or other discriminatory practices.

Appellant states that at the meeting the Plant Manager thanked two people

for doing an outstanding job, discussed the new organizational structure,

and informed the staff about the arrival of a new employee.

The agency has not supplied any evidence about what transpired during

the meeting. In the decision the agency simply stated that a meeting

was scheduled for November 21, 1997. The agency has not supplied a list

of attendees to show that the security staff met with the Plant Manager.

The Commission shall remand provision 1(D) so the agency can supplement

the record with evidence showing: (1) what transpired during the meeting;

and (2) whether security staff attended the meeting.

Provision 1(E)

The agency found, and appellant admits, that appellant received physical

security training in September 1997. Appellant argues on appeal that

such training was not necessary to perform duties as a physical security

specialist. Neither party has clearly indicated what "areas" appellant

was working in at the time of the settlement agreement. Although the

Plant Manager stated in his October 30, 1997 memorandum that "on-the-job

training and experience" was provided to appellant to prepare her for

the period when she will be rotated into the team leader position, it

is not clear if the duties of acting team leader is considered to be in

"other areas" of appellant's position description. Although appellant's

position description for Physical Security Specialist, GS-0080-12, is in

the record, it is not clear what duties are considered the "other areas."

The Commission shall remand the matter so that the agency may: (1) provide

evidence showing what duties appellant was working on when the agreement

was entered into; (2) clearly indicate what training was provided for

appellant to work in other areas listed in her position description;

and (3) clearly identify the relevant "other areas" for which appellant

received training pursuant to provision 1(E) of the agreement.

The agency's decision finding that it did not breach provision 1(A)

(which is hereby void) of the settlement agreement is AFFIRMED.

The agency's decision finding that provisions 1(C), 1(D), and 1(E)

of the settlement agreement have not been breached is VACATED and we

REMAND provisions 1(C), 1(D), and 1(E) of the settlement agreement to

the agency for further processing in accordance with this decision and

applicable regulations.

ORDER

The agency shall supplement the record with the following evidence in

order to show that the agency has complied with provisions 1(C), 1(D),

and 1(E) of the settlement agreement:

1. A copy of a written specific rotational schedule for specialists to

serve as team leaders.

2. Affidavits or minutes/notes describing what transpired during the

meeting the agency claims satisfied provision 1(D) of the agreement.

3. A roster of attendees at the meeting which the agency claims satisfied

provision 1(D) of the agreement. The roster of attendees shall show

whether the security staff was present at the meeting.

4. Documents and/or affidavits showing what duties appellant was working

on when the agreement was entered into.

5. Documents clearly indicating what training was provided for appellant

to work in other areas listed in her position description

6. Documents clearly identifying the relevant "other areas" for which

appellant received training pursuant to provision 1(E) of the agreement.

Within 60 days of the date this decision becomes final the agency shall

issue a new decision determining whether the agency breached provisions

1(C), 1(D), and 1(E) of the settlement agreement. A copy of the agency's

new decision must be sent to the Compliance Officer referenced herein.

IMPLEMENTATION OF THE COMMISSION'S DECISION (K0595)

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 appellant. If the agency does not comply with the Commission's

order, the appellant may petition the Commission for enforcement of

the order. 29 C.F.R. �1614.503 (a). The appellant 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. �� 1614.408, 1614.409, and 1614.503 (g). Alternatively,

the appellant 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. �� 1614.408 and 1614.409. 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

appellant files a civil action, the administrative processing of the

complaint, including any petition for enforcement, will be terminated.

See 29 C.F.R. �1614.410.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0795)

The Commission may, in its discretion, reconsider the decision in this

case if the appellant or the agency submits a written request containing

arguments or evidence which tend to establish that:

1. New and material evidence is available that was not readily available

when the previous decision was issued; or

2. The previous decision involved an erroneous interpretation of law,

regulation or material fact, or misapplication of established policy; or

3. The decision is of such exceptional nature as to have substantial

precedential implications.

Requests to reconsider, with supporting arguments or evidence, MUST

BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this

decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive

a timely request to reconsider filed by another party. Any argument in

opposition to the request to reconsider or cross request to reconsider

MUST be submitted to the Commission and to the requesting party

WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request

to reconsider. See 29 C.F.R. �1614.407. All requests and arguments

must bear proof of postmark and 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 filed on the date it is received

by the Commission.

Failure to file within the time period will result in dismissal of your

request for reconsideration as untimely. If extenuating circumstances

have prevented the timely filing of a request for reconsideration,

a written statement setting forth the circumstances which caused the

delay and 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. �l6l4.604(c).

RIGHT TO FILE A CIVIL ACTION (T0993)

This decision affirms the agency's final decision 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 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.

It is the position of the Commission that 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.

You should be aware, however, that courts in some jurisdictions have

interpreted the Civil Rights Act of 1991 in a manner suggesting that

a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the

date that you receive this decision. To ensure that your civil action

is considered timely, you are advised to file it WITHIN THIRTY (30)

CALENDAR DAYS from the date that you receive this decision or to consult

an attorney concerning the applicable time period in the jurisdiction

in which your action would be filed. 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 (Z1092)

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:

January 20, 1999

DATE Ronnie Blumenthal, Director

Office of Federal Operations