0120141465
10-16-2014
Complainant, v. Deborah Lee James, Secretary, Department of the Air Force, Agency.
Complainant,
v.
Deborah Lee James,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 0120141465
Agency No. 413413006
DECISION
Complainant filed a timely appeal with this Commission from a final decision (FAD) by the Agency dated June 25, 2014 finding that it was in compliance with the terms of the settlement agreement into which the parties entered. See 29 C.F.R. � 1614.402; 29 C.F.R. � 1614.504(b); and 29 C.F.R. � 1614.405.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as Chief, Public Affairs Operations at the Agency's Office of the Chief of the National Guard Bureau facility in Alexandria, Virginia. Believing that the Agency subjected her to unlawful discrimination, Complainant contacted an Agency EEO Counselor to initiate the EEO complaint process. On December 4, 2013, Complainant and the Agency entered into a settlement agreement to resolve the matter. The settlement agreement provided, in pertinent part, that the Agency agreed to:
(2g) Pay Complainant's reasonable attorney fees and costs in the sum of ten thousand three hundred twenty dollars and ninety-one cents ($10,320.91) as full and final settlement of Complainant's demand for reimbursement of fees and costs in this matter. This payment will be made directly to Complainant's attorneys . . .. [Complainant's Attorneys] will submit required banking information to effectuate this payment electronically. The actual payment will be processed immediately and the parties agree to expedite this payment to the extent possible. Either party may request a status on payment at any time. Failure to process the payment in a reasonable manner is considered a breach of the agreement (see paragraph 4 below). The parties do understand that [another Agency] is responsible for actually processing the payment and [the defendant Agency] cannot control that office's payment systems.
(2a) To the greatest extent possible, this Complainant will be consulted in advance prior to any decisions made affecting the assignments of her subordinates;
(2c) [The Acting Deputy Director (AD)] shall not communicate directly with Complainant's subordinates, nor direct or request any person to communicate directly with Complainant's subordinates, unless Complainant consents to such communication. . . . Any preauthorized communication with the Complainant's subordinates shall be via email with an electronic copy (Cc) to the Complainant unless Complainant consents to direct communication. . . . Furthermore, [AD] shall have no tasking authority over the Complainant's subordinates. [AD] shall not, in any communications with Complainant's subordinates, refer to Complainant in any negative or critical manner, nor in any way question Complainant's performance or leadership skills. Furthermore, all of [AD's] communications to Complainant's subordinates which refer or relate to Complainant, shall be work related only.
(2d) [AD] shall communicate to Complainant only in written form, including email. Copies of written communication from [AD] to Complainant shall be sent to [Management Officials 1 & 2 (MOs 1 & 2)] or their successors. Copies of e-mail communications from [AD] to Complainant shall be copied ("cc'd") to [MOs 1 & 2] or their successors.
(2h) Within thirty (30) days of the date of the settlement, restore to Complainant sixteen (16) hours of annual leave which leave Complainant used to meet with counsel for purposes of perfecting her complaint and for preparing for alternative dispute resolution.
By letter to the Agency dated January 24, 2014, Complainant alleged that the Agency was in breach of the settlement agreement, and requested that the Agency specifically implement its terms. Specifically, Complainant alleged that the Agency failed to pay Complainant's attorney's fees as promised (Claim 1). After the Agency did not timely issue a decision addressing this allegation, Complainant appealed on March 6, 2014.
Complainant sent the Agency another letter, dated March 13, 2014, alleging additional breaches by the Agency. Specifically, Complainant alleged that AD "communicat[ed] with Complainant's subordinates via email without copying her; fail[ed] to copy [MOs 1 & 2] on email correspondence with her; and involve[ed] himself with assignments of her subordinates without discussing his involvement with her beforehand. In addition, to date, the Agency has not restored Complainant's annual leave" (Claim 2).
The Agency issued a FAD dated June 25, 2014, addressing the breaches alleged in Claim 2. With regard to the alleged breach of clause 2(a), the Agency found that Complainant had failed to provide evidence to support the allegation and that the allegation was "unsubstantiated." With regard to clause 2(c), the Agency found that AD "occasionally communicates with some of the Complainant's subordinates without prior coordination with the Complainant. However, the overwhelming weight of the evidence show [sic] that such communication is peripheral at best and could best be characterized as general coordination," but that the allegation was nevertheless "substantiated." With regard to clause 2(d), the Agency found there was no evidence to support the allegation and it was "unsubstantiated." With regard to clause 2(h), the Agency found that the Agency did not restore the leave in the 30 days provided for in the settlement agreement, but that the leave had since been fully restored and that the matter was therefore moot. While the Agency found that the allegation regarding the breach of clause 2(c) was substantiated, the FAD went no further and failed to address any remedy.
ANALYSIS
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. Dep't of Def., 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. Dep't 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. U.S. Postal Serv., 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).
In the instant case, with regard to clause 2(h) the Agency has submitted documentation on appeal showing that payment was made to Complainant's attorney on March 24, 2014. Accordingly, we find that the Agency has substantially complied with this allegation as it relates to fees accrued by Complainant's attorney up to the point of the signing of the settlement agreement.
With regard to clause 2(a) the Agency in its FAD contends that its investigation showed that "no subordinates [of Complainant] claimed [AD] ever tasked them or assigned them work or otherwise directly impacted their duty assignments" while Complainant "provided no evidence that [AD] made any decisions regarding [such] assignments." Furthermore, we note that the agreement states that such consultations with Complainant only had to be made "to the greatest extent possible," thus acknowledging that there might be instances when such consultations would not be possible and AD could still assign Complainant's subordinates work without breaching the agreement. Because Complainant has not specified when such prohibited assignments allegedly took place, she has not shown they occurred when prior communication with her was possible. Given all of the above, we therefore find Complainant has not satisfied her burden of establishing breach with regard to this provision.
With regard to clause 2(c), the FAD found that Complainant's claim was substantiated but failed to offer a remedy.
With regard to clause 2(d), the FAD found that, after reviewing the emails submitted by Complainant, she provided no evidence that AD communicated directly with Complainant while failing to coordinate with MOs 1 & 2 except for one email where AD cc'd MO1 but not MO2. The Agency concluded that that one incident "could easily be due to [MO2]'s absence on a given date," and that "[t]here is no evidence of a pattern of excluding [MO2] from email traffic." We find that the Agency has substantially complied with this provision.
With regard to clause 2(h), the FAD found the matter to be moot because the leave had since been restored. Complainant on appeal, however, argues that the matter is not moot because only 15.5 hours of leave were restored. Specifically, Complainant alleges that:
rather than restoring 16 hours of annual leave, the Agency reversed 16 hours of annual leave she took on December 26 and 27, 2013, to indicate that she was on duty these dates when she was not. This had the effect of Appellant forfeiting a half hour of leave because her accrued annual leave balance at the end of payroll year 2013 exceeded the 240-hour maximum carry-over limit by a half hour.
Complainant has submitted a copy of her leave records showing that she ended the 2013 payroll year with a balance of 240.5 hours of annual leave and after the first pay period of the 2014 payroll year, after adding her 8 hours of annual leave per pay period, she had a balance of 248 hours instead of 248.5 hours, indicating that she lost 0.5 hours of leave. See Complainant's Supplement to Settlement Agreement Appeal Brief, Attachment 3. The Agency has not addressed this contention. We note, however, that Complainant has not shown how the Agency's action in reversing the 16 hours of leave Complainant took in December as opposed to adding 16 hours of leave to Complainant's balance would have resulted in a different outcome. Specifically she has not shown that if the Agency had added 16 hours of leave to her balance, she would not have ended the year with a balance in excess of 240 hours and would not have lost any leave in excess of that amount. We therefore find that the Agency substantially complied with this provision.
Following a review of the record we find that the Agency breached the agreement when, according the FAD, AD would "occasionally communicate[ ] with some of the Complainant's subordinates without prior coordination with the Complainant." The remedies available to Complainant are specific performance of the terms of the agreement or reinstatement of the underlying EEO complaint at the point processing ceased. Complainant has requested that the Agency comply with the agreement.
CONCLUSION
Based on our review of the record and the statements and contentions on appeal, we find that the Agency breached the Agreement. Accordingly, we REVERSE the Agency's final decision and REMAND the matter for action in accordance with the ORDER below.
ORDER
The Agency is ordered to comply with the settlement agreement and specifically ensure that AD does not communicate directly with Complainant's subordinates, nor direct or request any person to communicate directly with Complainant's subordinates, unless Complainant consents to such communication. In addition, the Agency shall ensure that the remaining provisions of clause 2(c) and the agreement as a whole are adhered to.
The Agency shall pay attorney's fees and costs and calculate attorney's fees and costs related to the instant appeal in accordance with the "Attorney's Fees" paragraph below.
The Agency is further directed to submit a report of compliance, as provided in the statement entitled "Implementation of the Commission's Decision." The report shall include supporting documentation verifying that the corrective action has been implemented.
ATTORNEY'S FEES (H0610)
Complainant has been represented by an attorney (as defined by 29 C.F.R. � 1614.501(e)(1)(iii)), and is entitled to an award of reasonable attorney's fees incurred in the processing of her claim of breach of the settlement agreement. 29 C.F.R. � 1614.501(e). The award of attorney's fees shall be paid by the Agency. The attorney shall submit a verified statement of fees to the Agency -- not to the Equal Employment Opportunity Commission, Office of Federal Operations -- within thirty (30) calendar days of this decision becoming final. The Agency shall then process the claim for attorney's fees in accordance with 29 C.F.R. � 1614.501.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610)
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, DC 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 (M0610)
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), at 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 77960, Washington, DC 20013. 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 (R0610)
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 (Z0610)
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
October 16, 2014
__________________
Date
2
0120141465
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120141465