0120122351
10-03-2012
Krystal Carrion, Complainant, v. Ray Mabus, Secretary, Department of the Navy, Agency.
Krystal Carrion,
Complainant,
v.
Ray Mabus,
Secretary,
Department of the Navy,
Agency.
Appeal No. 0120122351
Agency No. 11-00318-01206
DECISION
Complainant filed a timely appeal with this Commission from a final decision (FAD) by the Agency dated March 30, 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 Police Officer in the Military Police Department, Operations Division, at the Agency's Marine Corps Base in Kaneohe Bay, Hawaii. Believing that the Agency subjected her to unlawful discrimination, Complainant contacted an Agency EEO Counselor to initiate the EEO complaint process. On January 19, 2012, Complainant and the Agency entered into a settlement agreement to resolve the matter. The settlement agreement provided, in pertinent part, that the Agency agrees:
(1) To permanently reassign Complainant, the Base Safety Officer, Marine Corps Base, Hawaii, and place her in a career ladder GS 5/7/9 Safety and Occupational Health Specialist (GS-018-05, target GS-018-09) position. Permanent reassignment will be made once the Complainant has been promoted to GS-07 in her current civilian police officer position projected to be in March 2012.
(2) To restore 171 hours of sick leave to [Complainant]'s sick leave account which she charged during the 2009-2011 period.
(3) To provide [Complainant] training to serve as a collateral duty EEO counselor. This training will include training in mediation procedures, with the training to take place at the [Agency's] facility on Oahu as courses are scheduled and quotes become available to the [Agency] command.
By letter to the Agency dated March 5, 2012, 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 provide the reassignment, sick leave and training as stated in the provisions listed above.
In its March 30, 2012 FAD, the Agency determined that it had not completed compliance with the settlement agreement particularly with respect to the reassignment. Further the Agency noted that the restoration of leave was to be done by the Defense Finance and Accounting Services. The Agency's final decision was silent as to the training provision. However, as a whole, the Agency determined that it had completed all but two provisions of the settlement agreement. It further noted that the agreement did not include timeframes; therefore, it still is working to implement the agreement. Therefore, it "has no information to conclude the Agency has breached any of its obligations" to Complainant in the agreement.
Complainant appealed asserting that the Agency had not complied with the provisions listed above. As such, she indicated that the Agency has breached the settlement agreement. In response to Complainant's appeal, the Agency argued that it has since complied with all the provisions of the settlement agreement. The Agency also included evidence to show it has provided Complainant with the promotion to the GS-7 level with a reassignment to a GS-018-07 position. Further, the Agency included a letter from the Civilian Payroll Office Supervisor with the Defense Finance and Accounting Services dated May 7, 2012, stating she updated Complainant's leave restoring her 171 hours of sick leave. Finally, the Agency provided an agenda for the Department of Agriculture's Graduate School's EEO Counseling course noting that the training met the Commission's 32 hours of training for new EEO Counselors. The training provided participants with resolution techniques. The course materials were provided to Complainant on July 3, 2012, as evidenced by her signature on the "Transfer of Custody Receipt" for the EEO Counselor Course material.
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 failed to provide Complainant with all the items agreed to within the settlement agreement as noted by Complainant in her letter to the Agency in March 2012. However, subsequently, the Agency has taken the appropriate steps to comply with the outstanding provisions of the settlement agreement. We note that the settlement agreement did not provide for a specific timeframe in which the provisions must be completed. We note that there is no evidence in the record that the Agency in any way intentionally failed to comply with the terms of the provisions listed above for the instant agreement. Therefore, we find that the Agency has complied with the settlement agreement.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's determination finding no breach of the settlement agreement.
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
October 3, 2012
__________________
Date
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0120122351
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120122351