01990243_r
10-05-1999
Susan K. Kamal, Appellant, v. Lawrence H. Summers, Secretary, Department of the Treasury, Agency.
Susan K. Kamal, )
Appellant, )
) Appeal No. 01990243
v. ) Agency No. DT-97-4133
)
Lawrence H. Summers, )
Secretary, )
Department of the Treasury, )
Agency. )
)
DECISION
On October 14, 1998, appellant filed an appeal with this Commission after
receiving no final decision from the agency concerning her notice of
settlement breach dated August 3, 1998. An appellant may appeal to the
Commission for a determination as to whether the agency has complied with
the terms of a settlement agreement thirty-five (35) days after serving
notice to the agency, when the agency fails to respond to the notice
of breach. See EEOC Regulation 29 C.F.R. �1614.504(b). Accordingly,
the appeal is accepted as timely.
A review of the record reveals that on May 29, 1997, appellant and the
agency entered into a settlement agreement for Agency Number DT-97-4133,
which provided, in pertinent part, that the agency will:
(1)(b) Within 30 days from the date of this agreement, assign [appellant]
to a Revenue Agent group, Examination Division in the Tempe, Arizona
post of duty.
(1)(c) Schedule [appellant] to attend Revenue Agent Phase III and IV
training when available.
(1)(d) Within 30 days of the aforementioned reassignment, assign
[appellant] an On-the-Job Instructor (OJI) to assist her for a minimum
six-month period.
(1)(e) Upon [appellant's] successful performance as a GS-512-9 Revenue
Agent for one year (which includes a period of six months with an OJI
and six months without an OJI) and successful completion of all required
GS-512-9 Phase training, grant [appellant] a career ladder promotion to
the GS-512-11 Revenue Agent position.
(1)(f) Within 30 days of the reassignment, conduct monthly meetings
between [appellant], her manager, OJI and a member of the EEO staff to
discuss [appellant's] progress and development for a one-year period.
The parties agree that the facts of this settlement agreement and all
terms contained therein shall not be publicized in any manner except
as is necessary for the parties to carry out the terms of the agreement.
By letter dated August 3, 1998, appellant alleged that the agency
breached the settlement agreement when appellant was not assigned to
Tempe, Arizona, until approximately ninety (90) days after the settlement
agreement was signed in violation of provision (1)(b); appellant never
was given Phase III or IV training in violation of provision (1)(c);
appellant was not assigned an OJI within the applicable time period,
and the OJI provided no assistance with Phase II questions and training
in violation of provision (1)(d).
In a letter of acknowledgment dated August 11, 1998, the agency noted
that appellant failed to allege breach of settlement provisions (1)(b)
and (1)(d) within thirty (30) days of their occurrence. The agency
requested, inter alia, that appellant provide information to substantiate
the timeliness of her allegations.
By letter dated September 7, 1998, appellant responded to the agency's
request for information. Therein, appellant explained that she did not
want to begin a new position fighting with management. Appellant also
claimed that the agency breached provision (1)(d) of the settlement
agreement when the agency ensured that appellant would not successfully
complete her GS-9 assignment or qualify for the GS-11 promotion by
refusing to provide appellant with phase training; and breached provision
(1)(f) when the agency failed to hold monthly meetings with appellant
in January 1998, February 1998, or after March 1998.
On appeal, appellant outlines the procedural history of her complaint and
contends that the agency also breached provision (4) of the agreement
when, on October 5, 1998, it published the contents of appellant's
settlement agreement by sending appellant a notice of proposed demotion
via a co-worker.
In response, the agency contends that appellant's underlying concern
was the agency's proposal to demote appellant out of the Revenue Agent
position due to her inadequate performance. The agency argues that
this issue is a new allegation that should be dealt with in a separate
complaint, and, in fact, has been raised by appellant in a separate
complaint, Agency Number 99-4032. Further, the agency asserts that
several of appellant's allegations were untimely raised, and that
appellant's explanation for her untimeliness should not toll or waive
the statutory period.
The agency also argues that it complied with the agreement. Specifically,
the agency contends that the agreement set no dates for Phase III and IV
training, and that appellant could not attend the training because she
never successfully completed Phase II training as required by agency
regulations. The agency asserts that appellant was not promoted to
GS-11 because she never successfully completed her GS-9 assignment.
The agency notes that the settlement agreement was silent regarding the
consequences of appellant's failure to complete the GS-9 Revenue Agent
position successfully, and therefore is not governed by or related to
the settlement agreement. Further, the agency argues that it extended
appellant's time with an OJI beyond the requirements of the agreement in
order to give appellant an opportunity to improve her performance, but
the agency's failure to extend training indefinitely does not violate
the agreement. The agency also asserts that if appellant wanted more
training time, she should have negotiated to ensure that the settlement
agreement provided for it. Regarding publication of the agreement,
the agency contends that the notice of proposed demotion was not part
of the settlement agreement, and was not mentioned in the letter viewed
by a co-worker.
The record contains a memo to appellant dated July 8, 1998, which
states that appellant failed to perform at an acceptable level, and
that appellant will be granted additional assistance from an OJI until
September 11, 1998. The memo informed appellant that if her performance
did not improve, she would be removed from the Revenue Agent position.
The record also contains a letter to appellant dated October 5, 1998,
which proposes to reduce appellant from a GS-9 Revenue Agent position to a
GS-7 Tax Examiner position. The letter further states that appellant will
not receive Phase III or IV training because appellant was not performing
at a successful level, but does not mention the settlement agreement
specifically. The record also includes a copy of the formal complaint,
dated November 2, 1998, and the notice of processing, dated January 11,
1999, for Agency Number 99-4032, which concerns appellant's demotion.
ANALYSIS AND FINDINGS
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. In addition, 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 (Dec. 9, 1996).
The Commission has consistently held that settlement agreements are
contracts between appellant and the agency, and 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 (Aug. 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
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, 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).
Pursuant to 29 C.F.R. �1614.504(b), an agency has 35 days from the
receipt of an appellant's allegation of breach to resolve the matter.
The Commission has consistently interpreted that provision to mean that
an agency has 35 days within which to cure any breach that has occurred.
See Covington v. United States Postal Service, EEOC Appeal No. 01912311
(Sept. 30, 1991); see also Berendson v. Department of Agriculture, EEOC
Appeal No. 01945873 (Mar. 9, 1995) recons. den. EEOC Request No. 05950488
(Mar. 1, 1996) (no breach where agency has cured problem). In the
present case, the Commission finds that although the agency failed to
move appellant to her Arizona post, or to assign her an OJI within the
time frame allotted under provisions (1)(b) and (1) (d) of the settlement
agreement, the agency cured its breach of these provisions.
The Commission also finds that appellant failed to prove that the agency
publicized the settlement agreement in violation of provision (4).
Even if the October 5, 1998 letter was seen by appellant's co-worker,
the letter does not reveal the contents, or even the existence, of the
May 29, 1997 settlement agreement.
Regarding settlement provision (1)(c), however, the Commission finds
that the agency breached the agreement. The agency agreed to provide
appellant with Phase III and IV training, as available, but did not
place any condition, such as appellant's completion of Phase II and OJI
training, on appellant's receipt of such training. If the agency wished
to place a condition precedent on appellant's receipt of Phase III and
IV training, it should have ensured that such a provision was included
in the agreement. Further, since no condition was placed on the receipt
of Phase III and IV training, and since, pursuant to settlement provision
(1)(e), appellant was to receive a promotion after one successful year as
a GS-9 Revenue Analyst and successful completion of all phase training,
the agency was under a duty to give appellant Phase III and IV training
within one year. Therefore, the agency's failure to provide Phase III
and IV training during appellant's term as a GS-9 Revenue Analyst was
a breach of the settlement.
Regarding appellant's demotion, the agency correctly found that the
matter was an intervening incident beyond the scope of the settlement
agreement, and thus, should be processed as a separate complaint of
discrimination.<1> However, since appellant has been demoted from
the GS-9 Revenue Analyst position to a GS-7 Tax Examiner position,
appellant presumably will not be eligible to receive Revenue Agent phase
training, or a promotion to a GS-11 Revenue Agent position upon successful
completion of said training. Therefore, it appears that the intervening
incident has rendered compliance with the settlement agreement impossible.
Accordingly, the Commission finds that reinstatement of appellant's
complaint is the only available remedy for breach of the agreement.<2>
CONCLUSION
Accordingly, the agency's refusal to reinstate appellant's complaint is
REVERSED, and this matter is REMANDED for further processing.
ORDER
The agency is ORDERED to process appellant's complaint from the point
at which processing ceased. The agency shall acknowledge to appellant
that it has reinstated appellant's complaint for processing within thirty
(30) calendar days of the date this decision becomes final.
A copy of the agency's letter of acknowledgment to appellant must be
sent to the Compliance Officer as referenced below.
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. �1614.604(c).
RIGHT TO FILE A CIVIL ACTION (R0993)
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. 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 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 (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:
October 5, 1999
__________________________________
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
1As indicated above, appellant is pursuing a separate complaint regarding
her demotion in Agency Number 99-4032.
2Given our determination regarding the relief available to appellant, we
find it unnecessary to address appellant's other allegations of breach,
because no further remedy would be possible.