diabetes and a settlement agreement
1 Complainant requested that the agency install automated doors; grant
her an 8:00 a.m. to 4:30 p.m. work schedule; allow her to telecommute two
to three days per week or six to eight hours per week; provide a small
refrigerator at her work station; and, limit her out of town assignments.
Complainant contended that these accommodations were necessary because
she suffered from diabetes and arthritis.
Karen L. Clark,
Complainant,
v.
Michael W. Wynne,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 0120064587
Agency No. 8L1M06006
DECISION
Complainant filed a timely appeal with this Commission from a final
agency decision (FAD) dated June 23, 2006, finding that the agency was in
compliance with the terms of the January 25, 2006 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.
The settlement agreement provided, in pertinent part, that:
1. The Complainant or her medical providers will provide to the
Agency, within 30 days of the date of the signing of this Agreement,
medical records which she wishes to be considered on the issue of
possible reasonable accommodation of any medical conditions she may have.
The Complainant will provide additional updated medical records related
to her disabilities and her request for reasonable accommodation as
these records become available to her.
2a. Upon receipt of the above-mentioned medical documentation
from Complainant, the Agency will evaluate and make a determination
of any reasonable accommodation that it may be able to afford to the
Complainant, and the Agency agrees to engage in a reasonable good faith
dialogue with the Complainant regarding any reasonable accommodation
that may be appropriate for the Complainant, including the possibility
of telecommuting and/or a flex-time work arrangement. The Agency also
agrees to place the Complainant in a non-supervisory GS-2003-12, Supply
System Analyst, 84 MSUQ/GBMS (Home Office Flight) or other position as
the result of reasonable accommodation to the Complainant.
2d. The Agency will have Complainant’s current Position Description
reviewed by a
Classification Specialist for accuracy and against duties
performed. In the event it is determined that any of the document
codes (including skill and SHREDS) in the Position Description
are not accurate, the Agency will correct any inaccuracy. The
Complainant agrees to submit to her new supervisor an OF Form 612
which reflects her correct work experience. The Agency agrees to
review the OF Form 612, and if the Complainant’s work experience
is not accurately reflected in her personnel records, the Agency
will correct her personnel records accordingly to ensure that
she is given appropriate credit for her work experience.
2e. Within three weeks of the parties signing this Agreement,
the Agency will remove from the Complainant’s 201 and 971 official
personnel files, the Last Chance Agreement entered into with her on
30 August 2005. The Agency will remove from her 201 and 971 official
personnel files any documents requiring that the Complainant be placed on
probationary status under the Last Chance Agreement as referenced in the
suspension letter dated on or about 30 August 2005 and the Complainant
is restored to her career status prior to 30 August 2005. The Complainant
agrees to adhere to established rules of ethics and conduct, and activity
required of federal workers pursuant to statutes, regulations, directives,
polices, and rules related to the use of or threat to use violence in the
workplaces. A violation of any statute, regulation, directive, policy,
or rule related to the use of or threat to use violence in the workplace,
may result in appropriate discipline up to and including removal from
federal service in accordance with applicable statute, regulation,
Master Labor Agreement or rule.
2f. Within three weeks of the parties signing this Agreement,
the Agency will reduce
Complainant’s 5-day suspension to a 3-day suspension, correct her 201 and
971 official personnel records, and restore two days pay. Furthermore,
Complainant may submit to a manager selected by the ADR Champion from Hill
AFB’s ADR program’s pool of Peer Review panelists, her 3-day discipline
case for an independent, objective review, with the Agency allowed the
opportunity to submit matters on the same subject, and said manager’s
review will determine a final, unappealable resolution of the case that
may not exceed the existing 3-day suspension. Complainant’s 201 and 971
official personnel files and time cards will reflect any and all changes,
if any, that arise out of the independent manager’s review.
9. The parties and their representatives agree that the facts of
this settlement agreement and all of the terms contained herein shall
be kept CONFIDENTIAL, and agree not to disclose or discuss the facts
of this settlement with others except Agency personnel who have a need
to know or unless required to release or disclose by law, including but
not limited to, the Freedom of Information Act.
11. All parties understand that the Defense Finance and Accounting
Service (DFAS) will make financial disbursements under this agreement,
and that the Agency has no control over DFAS. The Agency shall use its
influence and resources to facilitate prompt and efficient action on
payments to complainant provided for by this agreement.
By email to the agency dated May 26, 2006, complainant alleged that the
agency breached provisions 2a, 2d, 2e, 2f, 9, and 11 of the settlement
agreement and requested that the agency reinstate her underlying EEO
complaint. On May 31, 2006, the agency’s Equal Employment Opportunity
(EEO) Manager requested that complainant provide specific details of
his breach claim, but complainant had not responded to the request by
the time the FAD was issued.
In its June 23, 2006 FAD, the agency concluded that it did not breach
the agreement because it had complied with the terms of provisions 2a,
2d, 2e, 2f, 9, and 11.
On appeal, complainant elaborates on her assertion that the agency
breached the agreement. Complainant maintains that provision 2a
was breached because the agency failed to grant her five requested
accommodations1; provision 2d was breached because management used
inaccurate codes to review complainant’s experience and qualifications and
did not provide complainant’s updated OF Form 612 to the classification
specialist, and complainant’s personnel files were never corrected to
reflect her work experience; provision 2e was breached because the agency
did not comply with its terms until May 17, 2006, beyond the three week
time frame; provision 9 was breached because on May 2, 2006, an agency
official asked complainant how long her suspension was within “earshot”
of co-workers; and, the agency breached provision 11 because she did
not receive the promised pay until July 14, 2006, beyond the three-week
time frame specified in the agreement. Complainant further maintains
that the terms of provision 2f are improper because the provision does
not allow her to appeal the peer review panelist’s decision and allows
a single panelist to decide her case. Complainant also argues that the
panelist’s decision was not based upon credible evidence. The agency
requests that we affirm its FAD finding no breach.
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 O 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).
Provision 2a
Complainant alleged that the agency breached provisions 2a, 2d, 2e, 2f,
9, and 11 of the settlement agreement. Provision 2a states that after
the agency receives updated medical documentation from complainant
regarding her need for a reasonable accommodation, the agency will
evaluate and make a determination of any reasonable accommodation that
it may be able to afford to complainant, and the agency will engage in
good faith dialogue with complainant regarding any appropriate reasonable
accommodation, including the possibility of telecommuting and/or flex-time
work arrangements. The provision further states that the agency will
place complainant in a non-supervisory GS-2003-12, Supply System Analyst
position as a reasonable accommodation.
In investigative affidavits, agency officials stated that complainant’s
manager and second-level supervisor evaluated complainant’s request
for a reasonable accommodation against their unit’s needs by discussing
complainant’s medical restrictions with complainant. The officials stated
that after evaluating complainant’s medical needs and the agency’s needs,
they determined that they could grant her request to begin work at 8:00
a.m. They further stated that they could not accommodate complainant’s
request for telecommuting because her job duties required her to be
in the office. The officials further stated that complainant was not
allowed to have a personal refrigerator because there was a large public
refrigerator across the hall from complainant’s office. The officials
also stated that when complainant expressed her desire not to travel on
any particular occasion, management found another employee for the travel
assignment. Regarding complainant’s request for automated doors, agency
officials stated that they informed complainant that someone would assist
her through the doors if she rang the doorbell, and complainant never
informed management that the “doorbell solution” was not sufficient.
Upon review of this matter, we are persuaded that the agency evaluated
complainant’s requests for a reasonable accommodation in good faith.
In so finding, we note that agency officials stated that they engaged
in dialogue with complainant about the requested accommodations, and
granted or denied the accommodations based upon the needs of the agency.
We note that even in her appeal brief, complainant acknowledges that
she discussed her requested accommodations with management officials
but was unsatisfied with the outcome. The terms of the settlement
agreement do not guarantee that complainant would receive any particular
accommodation, only that the agency would evaluate her requests in
good faith. We find no evidence that the agency failed to dialogue
with complainant or evaluate her requests in good faith. Finally,
with respect to provision 2a’s promise that complainant will be placed
into a non-supervisory GS-20013-12 Supply Systems Analyst position, the
record contains a personnel action form reflecting that complainant was
placed into the promised position. Therefore, we find that the agency
complied with provision 2a of the agreement.2
Provision 2d
Provision 2d states that the agency will have complainant’s current
position description reviewed by a classification specialist for accuracy
and duties performed. The provision further stated that if the review
determined that any of the document codes in the position description are
not accurate, the agency will correct any inaccuracy. The provision also
states that the agency will review complainant’s Optional Application
for Federal Employment (OF Form 612) reflecting her work experience,
and if complainant’s work experience is not accurately reflected in
her personnel records, the agency will correct her personnel records to
ensure that she is given appropriate credit for her work experience.
Agency management stated that complainant failed to submit an OF
Form 612, which meant it could not fully evaluate the accuracy of
the work experience listed in her personnel files. Management stated
that the Civilian Personnel Office nonetheless reviewed complainant’s
qualifications, skills, and experience on January 31, 2006 and evaluated
complainant’s position description for accuracy relative to the duties
she performed with the information it had.
Complainant contends that she submitted the form to agency management on
February 19, 2006. Although complainant submitted a copy of her OF Form
612 on appeal, there is no indication that the form was submitted to the
agency, and complainant does not specify to whom she submitted the form.
Thus, we are unpersuaded that the form was submitted to the agency so
that the agency could complete the review of complainant’s position
description and personnel files. Consequently, we find that the agency
has not breached provision 2d.
Provision 2e
In provision 2e, the agency agreed that within three weeks after signing
the agreement, the agency would remove a last chance agreement dated
August 30, 2005 and any documents relating to her probationary status
from complainant’s 201 official personnel file and 971 appraisal
files. Agency management stated that references to the last chance
agreement and complainant’s probationary status were removed from her
personnel files within three weeks of the execution of the settlement
agreement. Complainant maintains that the agency did not meet the
three-week time frame for complying with provision 2e. Despite the
dispute over the date that the agency complied with provision 2e, the
record indicates that the agency has removed the specified items from
complainant’s files, and complainant does not dispute that the items
were ultimately removed. We have held that the failure to satisfy a time
frame specified in a settlement agreement does not prevent a finding of
substantial compliance of its terms, especially when all required actions
were subsequently completed. Centore v. Department of Veterans Affairs,
Appeal No. 01A04637 (November 2, 2000). Moreover, there is no evidence
that any delay in removing the items can be attributed to the agency’s
bad faith. Consequently, we find that the agency has substantially
complied with provision 2e.
Provisions 2f and 11
Provision 2f states that within three weeks of the execution of the
agreement, the agency will reduce complainant’s five-day suspension to
a three-day suspension, correct her personnel files, and restore her
with two days’ pay. The provision further states that complainant may
submit her three-day suspension to a manager selected by the Alternative
Dispute Resolution (ADR) Champion from the agency’s ADR program peer
review panel. The provision states that the manager’s decision will
be final, unappealable, and cannot exceed the three-day suspension.
Provision 11 states that all parties understand that the Defense Finance
and Accounting Service (DFAS) will make financial disbursements under
this agreement, and that the agency has no control over DFAS.
Complainant contends that provision 2f improperly allowed a single Peer
Review panelist to make an unappealable decision on her suspension, in
violation of established EEO principles. Complainant further contends that
provisions 2f and 11 were breached because she did not receive two days’
pay for the reduced suspension until July 14, 2006, and the agency did
not exert its influence to facilitate prompt payment until after she
alleged breach of the agreement.
Regarding complainant’s contention that provision 2f does not reflect
valid principles of ADR, we determine that complainant voluntarily
and knowingly agreed to abide by the unappealable decision of a single
panelist, as indicated by her signature on the agreement. Complainant
cannot now overturn the provision 2f simply because she disagrees with
the ADR decision. Thus, we find that the terms of the agreement are
valid and enforceable.
With respect to pay owed to complainant, we note that although provision
2f states that the agency will restore two days’ pay to complainant within
30 days of the execution of the agreement, provision 11 also makes it
clear that the agency has no control over financial disbursements under
the agreement. In this case, there is evidence that once complainant
informed the agency that she had not received the promised two days’
pay, the agency promptly sent an updated payment request on behalf
of complainant to DFAS.3 In this matter, we find no evidence in the
record that the late payment was the result of bad faith or undermined
the purpose or effect of the agreement. Consequently, we determine that
the agency substantially complied with provision 11.
Provision 9
In provision 9, the parties agreed that the facts of the settlement
agreement and its terms will be kept confidential and will not be
disclosed or discussed with others, except agency personnel who have a
need to know the matters contained in the agreement.
Agency management stated that the settlement agreement was only revealed
to management officials who needed to know about its terms in order to
ensure compliance. Complainant alleges that provision 9 was breached
when a management official came to her work station to discuss her
suspension, stopped in the middle of the work area, and asked her to
verify the dates of her suspension within “earshot” of five co-workers.
Upon review of this matter, we determine that asking complainant about
the duration of her suspension did not violate the terms of the agreement
because asking the question did not reveal any particular facts about
the agreement. Therefore, we find that the agency did not breach
provision 9.
CONCLUSION
Accordingly, the Commission affirms the final agency decision finding
no breach of the settlement agreement.
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 (S0900)
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 (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
_March 20, 2008_________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to the following recipients on the date
below:
__________________
Date
______________________________
Equal Opportunity Assistant
1 Complainant requested that the agency install automated doors; grant
her an 8:00 a.m. to 4:30 p.m. work schedule; allow her to telecommute two
to three days per week or six to eight hours per week; provide a small
refrigerator at her work station; and, limit her out of town assignments.
Complainant contended that these accommodations were necessary because
she suffered from diabetes and arthritis.
2 However, we note that the settlement agreement does not extinguish
complainant’s ability to claim that the agency denied her a reasonable
accommodation under the Rehabilitation Act after the execution of
the settlement agreement. Therefore, complainant may still raise a
reasonable accommodation claim under the Rehabilitation Act by filing
a new complaint if she wishes.
3 Agency management stated that when complainant expressed concern about
the amount of time it was taking to process her payment, the Civilian
Personnel Office sent an updated request in June 2006 to DFAS requesting
that complainant receive the promised payment.
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0120064587
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120064587
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