0120122311
10-15-2012
Kimberly Hammond, Complainant, v. Martha N. Johnson, Administrator, General Services Administration, Agency.
Kimberly Hammond,
Complainant,
v.
Martha N. Johnson,
Administrator,
General Services Administration,
Agency.
Appeal No. 0120122311
Agency No. 11R1PBSKAH01
DECISION
Complainant filed a timely appeal with this Commission from a final decision (FAD) by the Agency dated March 15, 2012, 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 Contract Specialist at the Agency's Energy & Utilities department facility in Boston, Massachusetts. Believing that the Agency subjected her to unlawful discrimination, Complainant contacted an Agency EEO Counselor to initiate the EEO complaint process. On March 14, 2011, Complainant and the Agency entered into a settlement agreement to resolve the matter. The settlement agreement provided, in pertinent part, that:
(1C) The Agency will work with [Complainant] to identify an appropriate individual to serve as a mentor to [Complainant] as requested in the [Complainant] Request.
(1D) [Complainant's] immediate supervisor will be available to discuss workload related concerns with [Complainant].
(1G) The Agency agrees that the tasks assigned to [Complainant] will be prioritized by her supervisors so that she has an understanding of the order in which she should address the tasks assigned to her.
By email to the Agency dated June 15, 2011, Complainant alleged that the Agency was in breach of the settlement agreement, and requested that the Agency specifically implement it terms. By FAD dated July 18, 2011, the Agency dismissed the claim of breach finding that the matter was raised in an untimely manner. The matter was appealed to the Commission and addressed in EEOC Appeal No. 0120113576.
In Hammond v. Gen. Serv. Admin., EEOC Appeal No. 0120113576, the Commission found that the Agency's dismissal of the matter was not appropriate. As such, the Commission ordered that the Agency to investigate Complainant's claim of breach of the settlement agreement. Following the investigation, the Agency was ordered to provide Complainant with a final decision regarding her claim of breach.
The Agency conducted an investigation. Following the investigation, the Agency issued its final decision on March 15, 2012, finding no breach of the settlement agreement. The Agency reviewed each provision of the settlement and found that it was not in breach of the agreement. Complainant appealed the Agency's decision.
On appeal, Complainant specifically alleged that the Agency failed to implement terms (1C), (1D), and (1G). As to term (1C), Complainant indicated that the Agency did not ask her to identify an individual to serve as the mentor. Further, Complainant indicated that the Supervisor failed to discuss workload and priorities with her as stated in terms (1D) and (1G) in the settlement agreement.
The Agency asked that the Commission affirm its decision finding no discrimination. The Agency provided the Commission with its complaint file. We note that upon review of the record provided, the Agency failed to provide the Commission with the investigation record compiled to issue its decision finding no breach.
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, we find that the Agency breached term (1C) of the settlement agreement. Complainant provided a copy of the email from the Agency stating the name of her mentor. We also note that the Agency, in its decision stated that Complainant was advised the name of her team leader and indicated to Complainant that she would be Complainant's mentor. The Agency failed to address whether it worked with Complainant as stated in the settlement agreement to identify a mentor. As such, we determine that the Agency breached term (1C) of the settlement agreement. We find that the appropriate remedy would be for the Agency to specifically comply with this term of the settlement agreement.
As to terms (1D) and (1G), we find that these terms providing that the supervisor will be available to discuss workload and guidance on priorities of Complainant's workload, are activities that are expected of a supervisor. As such, we determine that the Agency did not incur any legal detriment. As such, we find that these provisions of the settlement agreement shall be set aside for lack of consideration. See MacNair v. U.S. Postal Serv., EEOC Appeal No. 0196453 (July 1, 1997); Juhola v. Dep't of the Army, EEOC Appeal No. 01934032 (June 30, 1994); (citing Terracina v. Dep't of Health and Human Serv., EEOC Request No. 05910888 (March 11, 1992)). Furthermore, a review of Complainant's statement on appeal shows that Complainant required training and guidance from her supervisor as a form of reasonable accommodation. Therefore, we find that Complainant's claim that she was denied discussions about workload and guidance by her supervisor could also constitute a claim that the Agency was in violation of the Rehabilitation Act. If Complainant wishes to pursue this as a new complaint, she should seek EEO counseling from the Agency.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we MODIFY the Agency's decision finding breach of the settlement agreement. We determine that the Agency breached term (1C) of the settlement agreement and REMAND the matter for further processing in accordance with the ORDER below.
ORDER
The Agency shall, within 15 calendar days of the date this decision becomes final, work with Complainant to identify an appropriate individual to serve as a mentor. The Agency shall provide the Commission with a report of its compliance with term (1C) of the settlement agreement as required 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), 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 (T0610)
This decision affirms the Agency's final decision/action in part, but it also requires the Agency to continue its administrative processing of a portion of your complaint. 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 on both that portion of your complaint which the Commission has affirmed and that portion of the complaint which has been remanded for continued administrative processing. 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 your appeal with the Commission, until such time as the Agency issues its final decision on your complaint. 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
October 15, 2012
__________________
Date
2
0120122311
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120122311