0120121477
11-09-2012
Deborah Joseph, Complainant, v. Timothy F. Geithner, Secretary, Department of the Treasury (Internal Revenue Service), Agency.
Deborah Joseph,
Complainant,
v.
Timothy F. Geithner,
Secretary,
Department of the Treasury
(Internal Revenue Service),
Agency.
Appeal No. 0120121477
Agency Nos. IRS-10-0623-F
IRS-11-0341-F
DECISION
Complainant filed a timely appeal with this Commission from a final decision by the Agency dated December 9, 2011, finding that it was in compliance with the terms of an August 9, 2011 settlement agreement. See 29 C.F.R. � 1614.402; 29 C.F.R. � 1614.504(b); and 29 C.F.R. � 1614.405.
BACKGROUND
On August 9, 2011, Complainant and the Agency entered into a settlement agreement to resolve a matter that Complainant had pursued in the EEO complaint process. The settlement agreement provided, in pertinent part, that:
1.A. Effective October 1, 2011 the Complainant will be detailed to Leadership, Education and Delivery Services (LEADS) for a period of 120 days. The Complainant will remain at her current grade level during the detail. After 30 days in the detail the Complainant's workload will be evaluated by the Director of Workforce Relations Division. If sufficient work is not available at that time the complainant will be detailed to IRS Disability Office (IDO) for the remainder of the 120 day period.
1.B. No later than September 2, 2011 a statement will be placed in the Complainant's Employee Performance File and in HR Connect stating the complainant completed a detail in a GS-201 Labor Relations position from July 1, 2010 to October 28, 2010. [Director, Workforce Relations] will initiate this action.1
By letter to the Agency dated October 24, 2011, Complainant alleged breach. Specifically, Complainant merely alleged that the Agency breached provisions 1.A. and 1.B. of the instant settlement agreement.
The Agency found no breach. The Agency stated that according to the December 2, 2011 report from the Acting Field Operations Director (Director), Complainant was detailed to LEADS for 120 days effective August 28, 2011. Regarding provision 1.A., the Director acknowledged that the workload evaluation was to be held by November 1, 2011 but that the evaluation was not completed until November 28, 2011, due to an oversight. The Director further stated that a detail to the Disability Office was not considered, because there was sufficient work for Complainant to remain in LEAD for the full 120-day detail.
Regarding provision 1.B., the Director stated that the detail documentation to the Labor Relations Specialist is in HR Connect and notification was placed in Complainant's EPF. The Director stated that while the statement was undated, it was placed in Complainant's EPF by the prior Labor Relations Chief, who had since retired from Agency management.
The instant appeal followed.
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. 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).
The Commission has found substantial compliance with the terms of a settlement agreement where Agencies have committed, in good faith, a technical breach of a provision of the agreement which did not undermine its purpose or effect. The Commission has also found that the failure to satisfy a time-frame specified in a settlement agreement does not prevent a finding of substantial compliance of its terms, especially when all required actions were subsequently completed. Mopsick v. Department of Health and Human Services, EEOC Appeal No. 0120073654 (August 17, 2009) (citing Lazarte v. Department of the Interior, EEOC Appeal No. 01954274 (April 25, 1996)); Sorting v. United States Postal Service, EEOC Request No. 05950721 (November 21, 1996), (citing Baron v. Department of the Treasury, EEOC Request No. 05930277 (September 30, 1993)) (two-week delay in transfer of official letter of regret rather than letter of apology found to be substantial compliance).
There is no evidence in the record that the Agency intentionally failed to comply with the terms of provisions 1.A. and 1.B. We note that Complainant, on appeal, did not raise any new contentions. Regarding provision 1.A., the record contains a copy of the Director's memorandum dated December 2, 2011 to the Associate Chief Human Capital Officer. Therein, the Director stated that Complainant's 120-day detail to LEADS "was effective August 28, 2011. Though the workload evaluation was to be held by November 01, 2011, it was not completed until November 28, 2011 due to an oversight. A detail to the disability Office because of insufficient work was not considered as Management determined there was sufficient work for [Complainant] to remain in LED Services for the full 120 day assignment."
The record also contains a copy of the Chief of Labor Relations/Employee Relations Field Operations (Chief)'s email dated December 2, 2011 to the Director, Workforce Relations. Therein, the Chief stated that on November 28, 2011, she and a representative from the Workforce Relations Division contacted the Chief, LEADS "to discuss the current workload of the complainant [Complainant]. Upon completion of this evaluation to determine if there was sufficient workload, [Chief, LEADS] stated that there was more than sufficient work within LEADS for the remainder of the complainant's 120-day detail." Therefore, we find that the Agency has substantially complied with provision 1.A. of the settlement agreement.
Regarding provision 1.B., the Director stated that the documentation for the detail "is in HR Connect and notification was placed in [Complainant's] EPF. See attachment 'Statement to EPF.' Although the statement is not dated, it was placed in [Complainant's] EPF by the prior LR Chief who has since retired. Management believes it was placed in the EPF timely as it was retrieved upon request."
The Chief stated that on August 11, 2011, Complainant's Personnel Action Request "was [placed] into the system by the Workforce Relations Division on August 11, 2011, to reflect a detail to the position of GS-201-07, for the period July 1 - October 28, 2010. This action shows up in the Personnel Action History Report." The Chief also stated that a statement stating that Complainant was detailed as a Labor Relations Specialist, GS-201-07 during the July 1, 2010 - October 28, 2010 period was placed in Complainant's EPF. The record also contains a copy of Complainant's Personnel Action Request and the Chief's statement concerning Complainant's subject detail. Accordingly, we find that the Agency has substantially complied with provision 1.B.
The Agency's finding of no breach of provisions 1.A. and 1.B. of the August 9, 2011 settlement agreement is AFFIRMED.
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 (S0610)
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. 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 (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
November 9, 2012
__________________
Date
1 The settlement agreement also provides for the Agency to increase Complainant's overall rating on her 2011 Annual Performance Appraisal from 3.2 to 4.0 and evaluate the need for Complainant to receive Labor Relations Specialist training. These provisions are not at issue in the instant case.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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