0120114106
02-03-2012
Karla Miller, Complainant, v. Tom J. Vilsack, Secretary, Department of Agriculture (Food Safety and Inspection Service), Agency.
Karla Miller,
Complainant,
v.
Tom J. Vilsack,
Secretary,
Department of Agriculture
(Food Safety and Inspection Service),
Agency.
Appeal No. 0120114106
Agency No. FSIS-2007-00382
DECISION
Complainant filed a timely appeal with this Commission from a final
decision (FAD) by the Agency dated August 2, 2011, 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 a Data Entry Clerk at the Agency’s Financial Processing Center
facility in Des Moines, Iowa. Believing that the Agency subjected her
to unlawful discrimination, Complainant contacted an Agency EEO Counselor
to initiate the EEO complaint process. On December 17, 2007, Complainant
and the Agency entered into a settlement agreement to resolve the matter.
The settlement agreement provided, in pertinent part, that:
(1) Schedule and provide an American Sign Language (ASL) interpreter for
any and all employee meetings, trainings, and other activities where
hearing impaired employees are present or expected to be present and
information is shared with employees of the Financial Processing Center
(FPC), except where the delay of a meeting would compromise the personal
safety or well being of Agency personnel or customers; or where there
is an urgent need to communicate emergency issues or emergent matters of
national interest. In the event that the Agency is unable to obtain the
services of an ASL interpreter, the FPC will obtain a court reporter,
who will make a verbatim transcript of the meeting, except where the
delay of a meeting would compromise the personal safety or well being
of Agency personnel or customers; or where there is an urgent need to
communicate emergency issues or emergent matters of national interest. The
transcript will subsequently be interpreted for the [Complainant] by an
ASL interpreter.
(2) Provide for ASL interpreter for all substantive information sharing
with the [Complainant] regarding discussions of performance, mid year and
annual performance appraisal meetings, setting/changing of performance
standards, and/or job duties, significant counseling of performance
conduct between [Complainant] and her supervisor(s).
(3) Provide annual sensitivity/awareness training for employees of FPC
on topics of persons with disabilities including but not limited to
persons who are hearing impaired and deaf.
(4) Ensure employees of the FPC are made aware of and provided written
Civil Rights and Equal Employment Opportunity policies that include
procedures lo initiate EEO Counseling for allegations of employment
discrimination, and the same information will be provided to hearing
impaired and deaf employees by an ASL interpreter in their first language.
(5) Managers, supervisors and coworkers will communicate directly with the
[Complainant] on day to day work activities and issues by e-mail, face
to face, using typed or written methods, or other mutually acceptable
means of communication.
By letter to the Agency dated June 4, 2008, 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 comply with provisions
(1), (2) and (5). Complainant argued that the Agency failed to provide
her with effective ASL interpreters for employee meetings, disciplinary
meetings and other “workplace circumstances.” Complainant also noted
that the interpreters provided were not qualified and were incapable of
interpreting spoken English into ASL for her. As such, she was incapable
of understanding. As a result, Complainant was isolated from accurate
and effective interaction with her supervisors and other employees.
Complainant also requested that the Agency reinstate her complaint at
the point where processing ceased.
Initially, the Agency did not issue a determination on Complainant’s
claim of breach of the settlement agreement. Complainant filed an appeal
with the EEOC. We found that the Agency had not submitted sufficient
records for the Commission to issue a decision on Complainant’s
claim of breach of the settlement agreement. As such, in EEOC Appeal
No. 0120102173, the Commission remanded the matter back to the Agency
for further processing and to issue a determination. Miller v. Dep’t
of Agric., EEOC Appeal No. 0120102173 (March 31, 2011).
Subsequent to the Commission’s decision, the Agency issued its
determination. In its August 2, 2011 FAD, the Agency concluded that
Complainant had not provided any evidence to support her claim that the
settlement agreement was breached. The Agency found that Complainant
had not cited any specific dates or events in which the Agency failed
to provide an ASL interpreter or any other mutually agreed to method
of communication.
Complainant appealed the Agency’s determination. On appeal, Complainant
argued that the Agency has not engaged in mutually agreeable forms of
communication. Complainant provided copies of emails demonstrating that
she and the Agency continued to have problems with communications which
culminated in disciplinary action taken against her. As such, Complainant
requested that the Commission find that the Agency breached the settlement
agreement and remand her complaint from the point processing ceased.1
The Agency requested that the Commission affirm its determination.
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).
In the instant case, we find that Complainant has provided sufficient
evidence to show that communications problems continued as early as March
2008. Complainant noted that English is her second language and that
the interpreters provided were not able to translate for her effectively.
Further, Complainant provided emails which demonstrated that it was also
not an effective form of communication for her. We note the Agency’s
response to the appeal only provided documents pertaining to the filing
of the formal complaint which was settled by the agreement. The Agency
did not respond to the documents provided by Complainant on appeal.
Based on our review of the record, we find that Complainant and her
supervisors have
continued to have problems with ASL interpreters and other forms
of communication. Therefore, we find that the Agency has breached
the December 2007 settlement agreement. Complainant has specifically
requested that, if the Commission finds breach, that we order the Agency
to reinstate Complainant’s formal complaint from the point processing
ceased.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, we REVERSE the
Agency’s determination and REMAND the matter in accordance with the
ORDER below.
ORDER
The Agency is ordered to reinstate the underlying EEO complaint that was
settled by the parties in December 2007, and shall continue processing
pursuant to the provisions of 29 C.F.R. Part 1614 from the point
where processing ceased as a result of the settlement. The Agency shall
acknowledge to the Complainant that it has received the remanded complaint
within thirty (30) calendar days of the date this decision becomes final.
A copy of the Agency's letter of acknowledgment to Complainant, as well
as the eventual final agency decision or order, must be sent to the
Compliance Officer as referenced below.
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), 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
February 3, 2012
__________________
Date
1 We note that Complainant has raised additional incidents where she
was denied effective communications with Management. We find that such
new events constituted new claims of denial of reasonable accommodation.
Therefore, when the Agency reinstated Complainant’s prior EEO complaint,
Complainant should be provided with the opportunity to amend her complaint
to raise any additional claims of denial of reasonable accommodation.
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0120114106
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120114106