01A10310_r
08-08-2002
Kathy J. Stewart, Complainant, v. Ann M. Veneman, Secretary, Department of Agriculture, Agency.
Kathy J. Stewart v. Department of Agriculture
01A10310
August 8, 2002
.
Kathy J. Stewart,
Complainant,
v.
Ann M. Veneman,
Secretary,
Department of Agriculture,
Agency.
Appeal No. 01A10310
Agency No. 990500
DECISION
Complainant filed an appeal with this Commission from a final decision
by the agency dated August 28, 2000, finding that while the agency had
not complied with terms of the settlement agreement, corrective actions
were being taken to bring the agency into compliance with the terms of
the February 26, 1999 settlement agreement into which the parties entered.
The settlement agreement provided, in pertinent part, that:
The Agency Agrees to:
(1) Effective immediately the Planning and Information Management
Program Manager [Person A] will no longer be responsible for the day
to day operations or supervision of the Information Management Staff.
He will be responsible for working with the Regional Office in meeting
Regional performance objectives as they relate to planning, voice systems,
radio communications and information management. The implementation
and accomplishments will be done through the self-directed team.
(2) Effective immediately Information Management staff will become a self
directed work team. The Forest GIS Coordinator or acting will assist
the self directed work team by helping them to develop guidelines for
the operation of the self directed work team. The GS-334-11 position
will be responsible for managing the financial resources for Information
Management. Program of work, policy letters, decisions, and reply dues
will be coordinated by the Information Management self directed work
team. The team will also share responsibilities in addressing emerging
issues with the Forest Management Team. The GS-334-11 (Systems Programmer
Analyst) will be responsible for working with the Regional Office in
meeting Regional performance objectives as they relate to information
systems and data communications.
(3) The Planning Program Manager [Person A] will be required to
take mandatory Civil Rights, Ethics and Conduct, Sexual Harassment,
Sensitivity, and Supervisory training. This training must be completed
by 12/31/99.
(4) The Planning Program Manager [Person A] will assist the Agency
Human Resource personnel with facilitating the annual Sexual Harassment
training session.
The Agency will advertise in the next 45 calendar days a developmental
GS-334-7/9 Computer Specialist position to be located in Athens, Ohio.
Effective immediately the Agency will grant the Complainant's 40 hours
of Administrative time to be used in Calendar Year 1999. This is a
way to restore some of the annual and sick leave that was use because
of the hostile work environment.
Effective immediately the Complainant will not be required to meet with
[Person A] at any time unless demanded by job responsibilities that
another staff member cannot answer. If this case would arise, the
Complainant will only meet with [Person A] with a third party present.
By email to the agency dated April 27, 1999 and facsimile to the agency
dated April 28, 1999, complainant alleged that the agency breached
the settlement agreement. On August 28, 2000, the agency responded to
complainant's request by acknowledging that while the agency had not
complied with selected provisions of the settlement agreement, corrective
actions were being taken to bring the agency into compliance with the
terms of the February 26, 1999 settlement agreement.
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 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 has admitted that it has not complied with provisions 1 and
2 of the settlement agreement, and the record indicates that complainant
has requested reinstatement of her complaint. The Commission therefore
finds that in the instant circumstance, reinstatement of the settled
matter is proper. 29 C.F.R. �1614.504(c).<1> We find that the agency
breached the settlement agreement and we REMAND the matter so that the
agency may reinstate the settled matter pursuant to the Order herein.
ORDER
The agency shall, within 30 calendar days of the date this decision
becomes final, reinstate the settled matter for further processing
from the point processing ceased. The agency shall notify complainant
in writing of such reinstatement. A copy of the correspondence to
complainant reinstating the settled matter for processing must be sent
to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
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 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 (M0701)
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 (R0900)
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 (Z1199)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
August 8, 2002
__________________
Date
1 Because of our disposition, we need not address whether the agency
breached other provisions of the settlement agreement.