01981773_r
03-26-1999
Thelma J. Sands, Appellant, v. F. Whitten Peters, Secretary, Department of the Air Force, Agency.
Thelma J. Sands, )
Appellant, )
)
v. ) Appeal No. 01981773
) Agency Nos. KHOF97217
F. Whitten Peters, ) KHOF97424
Secretary, )
Department of the Air Force, )
Agency. )
)
DECISION
On December 17, 1997, appellant filed this appeal with the Commission
alleging that the agency did not comply with the terms of the settlement
agreement dated September 12, 1997.
ISSUE PRESENTED
The issue on appeal is whether the agency breached the settlement
agreement.
BACKGROUND
Two complaints filed by appellant were resolved by a settlement agreement
entered into on September 12, 1997. The agreement stated in relevant
part that:
Both parties will look for customer service training for {appellant}
and once a mutually agreeable course is located, {appellant} will be
sent to such training in Fiscal Year 1998.
{Appellant's supervisor} is willing to ensure that {appellant} is as
well-trained (i.e. job specific training and/or additional training
as agreed) in the performance of her job, as other employees under
his supervision.
Advance notice of training opportunities will be given whenever possible
and when such advance notice is not possible, management will communicate
to the employee why last minute notice was necessary.
Within 60 days, {appellant's supervisor} will go to the Directorate
of Personnel/Staffing and review {appellant's} shreds and update
same to accurately reflect all her recent training and her updated
duties/responsibilities. {Appellant} will be provided a copy of the
updated shred list.
{Appellant} has requested and management agrees to request a desk
audit within 30 days and to continue to follow up with Personnel every
thirty (30) days until such desk audit is performed. Upon completion,
{appellant's supervisor} will again perform a review and update of
{appellant's} shreds reflected in her personnel file. Management will
copy {appellant} on their memos/e-mails to personnel showing that they
have made the request and follow up called for herein.
Both parties {appellant's supervisor and appellant} agree to attend
communication skills training, within 120 days, to help improve their
communication with each other and to reduce future misunderstandings.
{Appellant} will provide {her supervisor} by personal communication,
note to him or e-mail to him when she will be away from her work area.
{Appellant's supervisor} will write on the dry erase board in his office
where he is going to be when he is away form the work area. He will also
keep his secretary advised of where to find him. {Appellant's supervisor}
will also reiterate to the employees under his supervision that he is
available by pager when they are not otherwise able to locate him.
The parties agree to make an ongoing effort to increase their daily
communication in a mutually respectful and polite manner.
{Appellant's supervisor and her second-level supervisor} will meet with
{appellant} and work with her and communicate to show her exactly what
the Branch Chiefs and Division Chief have indicated they want in an
award reference library.
Management agrees to redo the last appraisal and increase it from 76
Excellent (9,8,8,8,8,9,9,8,9) to 81 Superior (all 9's and critical
element 5 will be changed from met to exceeded) with a monetary award
for the difference between the award paid for Excellent and what was
paid for a Superior.
Within thirty (30) days, management agrees to make a written request
through appropriate channels, through proper authority, for {appellant} to
be moved to a permanent position at Brook Army Medical Center, Hospital,
Fort Sam Houston. {Appellant's} representative will be kept informed,
in writing, of the status of this process.
The record reveals that in a letter to the agency dated October 15, 1997,
appellant stated that management had not complied with those parts of
the settlement agreement that required a 30-day response. By letter to
the agency dated October 27, 1997, appellant requested that the agency
comply with the settlement agreement.
In a response dated November 10, 1997, the agency stated although the
desk audit was not done within the 30-day time frame, an audit was
conducted on November 4, 1997. The agency further stated that a letter
as stated in provision 12 of the settlement was forwarded to the Brook
Army Medical Center. With regard to the remaining terms of the agreement,
the agency stated that efforts are underway to process personnel actions
and/or follow up in a timely manner.
By letter to the agency dated December 10, 1997, appellant reiterated
her position that the agency had yet to demonstrate a valid attempt to
comply with the settlement agreement. Thereafter, appellant filed the
instant appeal.
The record contains a memorandum dated December 15, 1997, that provides a
status review of the settlement agreement. The status review indicated
that there has been compliance with all terms of the agreement.
By letter dated December 16, 1997, the agency updated appellant as to
the status of the agreement. The agency stated that it has fulfilled its
obligations with regard to the terms of the settlement agreement except
for provisions four and five. The agency noted that further action is
pending with regard to these latter provisions. According to the agency,
the estimated completion date of appellant's position description revision
is December 31, 1997. The agency stated that further action would then
be required by the Classification Section of the Directorate of Personnel.
In response to the instant appeal, the agency asserts that each term of
the agreement has been fully performed. The agency states that the final
act occurred on May 26, 1998, when appellant's supervisor personally
delivered to appellant the SF 50 and the core document reflecting her
official duties as determined by the SA-ALC/DP Classification.
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.
If the complainant believes that the agency has failed to comply with
the terms of a settlement agreement or final decision, the complainant
shall notify the EEO Director, in writing, of the alleged noncompliance
within 30 days of when the complainant knew or should have known of the
alleged noncompliance. The complainant may request that the terms of
the agreement be specifically implemented, or, alternatively, that the
complaint be reinstated for further processing from the point processing
ceased.
EEOC Regulation 29 C.F.R. �1614.504(b) provides that the agency shall
resolve the matter and respond to the complainant, in writing. If the
agency has not responded to the complainant, in writing, or if the
complainant is not satisfied with the agency's attempt to resolve the
matter, the complainant may appeal to the Commission for a determination
as to whether the agency has complied with the terms of the settlement
agreement or final decision. The complainant may file such an appeal
35 days after he or she has served the agency with the allegations of
noncompliance, but must file an appeal within 30 days of his or her
receipt of an agency's determination.
Settlement agreements are contracts between appellant and the agency and
it is the intent of the parties as expressed in the contract, and not
some unexpressed intention, that controls the contract's construction.
Eggleston v. Department of Veterans Affairs, EEOC Request No. 05900795
(August 23, 1990). In interpreting settlement agreements, the Commission
has applied the contract principle known as the "plain meaning rule"
which holds that where a writing is unambiguous on its face, its
meaning is determined from the four corners of the instrument without
resort to extrinsic evidence. Smith v. Defense Logistics Agency,
EEOC Appeal No. 01913570 (December 2, 1991). Moreover, other standard
contractual requirements such as the necessity of consideration, apply
in this context. Collins v. United States Postal Service, EEOC Request
No. 05900082 (April 26, 1990); Shuman v. Department of the Navy, EEOC
Request No. 05900744 (July 20, 1990); Roberts v. United States Postal
Service, EEOC Appeal No. 01842193 (May 9, 1985).
In the instant matter, appellant alleged that the agency had not
demonstrated it was in full compliance with the settlement agreement with
regard to the performance of a desk audit and a letter being forwarded
to the Brook Army Medical Center for purposes of assisting appellant
in obtaining a permanent position there. The record reveals that after
appellant alleged noncompliance with the settlement agreement, the agency
took steps to cure the alleged breach of the settlement agreement.
The record indicates that the letter was forwarded to the Brook Army
Medical Center. With respect to the desk audit, the desk audit was not
requested until October 23, 1997, after the 30-day time frame. However,
the audit was subsequently conducted on November 1997. Further, on May
26, 1998, appellant's supervisor presented appellant with her new core
document and SF 50 as evidence of her new position description. We find
that a breach of the agreement occurred with regard to the delayed request
for a desk audit; however, we also find that the agency cured the breach.
The terms of the settlement agreement have been implemented and as a
result, reinstatement of the complaint is not warranted.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. 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 (Z1092)
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:
March 26, 1999
DATE Ronnie Blumenthal, Director
Office of Federal Operations