Roger S. Otstot, Complainant,v.Dirk Kempthorne, Secretary, Department of the Interior, Agency.

Equal Employment Opportunity CommissionJan 8, 2009
0120071632 (E.E.O.C. Jan. 8, 2009)

0120071632

01-08-2009

Roger S. Otstot, Complainant, v. Dirk Kempthorne, Secretary, Department of the Interior, Agency.


Roger S. Otstot,

Complainant,

v.

Dirk Kempthorne,

Secretary,

Department of the Interior,

Agency.

Appeal No. 0120071632

DECISION

Complainant filed a timely appeal with this Commission from a final

decision by the agency dated March 15, 2007, finding that it was in

compliance with the terms of a June 24, 2005 settlement agreement. See 29

C.F.R. � 1614.402; 29 C.F.R. � 1614.504(b); and 29 C.F.R. � 1614.405.

The June 24, 2005 settlement agreement provided, in pertinent part, that:

2. Weekly staff meetings will be held every Thursday at 9:00 AM beginning

July 7, 2005. If [identified Management Official (MO] is out, the Acting

will facilitate the meeting and provide [Complainant] with an update of

the meeting.1

By letter to the agency dated December 6, 2006, complainant alleged

breach of provision 2. Specifically, complainant alleged "no weekly staff

meeting was held on November 30, 2006, as required by the agreement."

As a remedy, complainant requested that his underlying complaint be

reinstated for further processing from the point processing ceased.

In its March 15, 2007 final decision, the agency found no breach of

provision 2. The agency determined that on November 30, 2006, MO was

out on official travel; and that two employees designated as "acting" in

MO's absence were also away from the office that day. The agency stated

that according to MO, she was unaware that a meeting did not take place

on November 30, 2006; and that complainant did not inform her that the

staff meeting was not held on that day. MO stated that she felt that

a staff meeting would not have provided complainant with any pertinent

information that was necessary for him to do his work on November 30,

2006.

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).

The agency breached provision 2 of the settlement agreement. Provision 2

of the settlement agreement provides for an affirmative agency obligation

to hold weekly staff meetings held every Thursday at 9:00 a.m., and if

MO is out, the Acting will facilitate the meeting and provide complainant

with an update of the meeting. Complainant alleged that on November 30,

2006, there was no weekly staff meeting as required by the agreement.

The record supports this allegation.

To remedy a finding of breach, the Commission may order reinstatement or

the underlying complaint, or enforcement of the agreement's terms. See 29

C.F.R. � 1614.504(c). We find that in this particular circumstance,

the proper remedy is to order the agency to comply with the terms of

the agreement.

Accordingly, the Commission REVERSES the agency's finding of no breach

of provision 2 and REMAND this matter so that the agency can undertake

remedial action in accordance with the ORDER below.

ORDER

The agency is ORDERED to implement the terms of the settlement agreement

by undertaking the following action:

The agency shall make sure that weekly staff meetings are held every

Thursday at 9:00 a.m.; and if MO is out, the Acting will facilitate the

meeting and provide complainant with an update of the meeting.

The agency is further directed to submit a report of compliance,

as provided in the "Implementation of the Commission's Decision."

The report shall include all supporting documentation verifying that

the corrective action has been implemented.

IMPLEMENTATION OF THE COMMISSION'S DECISION (K0408)

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 77960,

Washington, D.C. 20013. 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 (M0408)

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 (R0408)

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 (Z1008)

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

January 8, 2009

__________________

Date

1 The settlement agreement also provides for MO to receive written updates

of projects via e-mails by 3:00 p.m. every Friday; MO will explain the

responsibilities of the person "Acting" in her absence during the first

staff meeting; management will assure that awards recognition would be

made at each staff meeting for awards that came in the previous week;

management will make an announcement at staff meetings of promotions made

as long those promotions can be published in the agency newspaper; MO and

complainant will have a weekly "one on one" meeting every Tuesday at 6:30

a.m. and MO will schedule "one on one" weekly meeting with the remainder

of her staff; during the year and when the Individual Development Plan

is being completed, complainant is to inform MO if he is interested in

details and training; and MO will not retaliate against complainant for

engaging in the EEO process. These provisions are not at issue in the

instant appeal.

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0120071632

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P. O. Box 19848

Washington, D.C. 20036

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0120071632

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