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