0120072663
08-21-2007
Sophie Daniel, Complainant, v. Pete Geren, Acting Secretary, Department of the Army, Agency.
Sophie Daniel,
Complainant,
v.
Pete Geren,
Acting Secretary,
Department of the Army,
Agency.
Appeal No. 0120072663
Agency No. ARHQOSA04SEP0222
DECISION
Complainant filed a timely appeal with this Commission from an agency
decision, dated April 23, 2007, finding that it was in compliance with
the terms of a September 29, 2006 settlement agreement. See 29 C.F.R. �
1614.402; 29 C.F.R. � 1614.504(b); and 29 C.F.R. � 1614.405.
The September 29, 2006 settlement agreement provided, in pertinent part,
that:
(c) As an alternative to the accommodation identified by the Agency
in paragraph 4a of the July 5, 2006 memorandum signed by Ms. [PR], the
Agency agrees to provide Complainant with an enclosed private work area
in the EO and Civil Rights Office on a temporary basis until such time as
the renovation begin[s] on the EEO and Civil Rights office. This will
be accomplished within seven (7) calendar days from the effective date
of this agreement. Upon relocation to the renovated area, complainant
will be provided with an enclosed private work area while employed with
EEO and Civil Rights Office.1
(d) As an alternative to the accommodations identified by the Agency in
paragraphs 4c and d of the July 5, 2006 memorandum signed by Ms. [PR],
the agency agrees to provide Complainant written notes of the EEO and
Civil Rights Office staff meetings which she is required to attend.
The written notes will be provided to Complainant within forty-eight hours
(48) of the completion of the meeting. In addition, during these staff
meetings, the official in charge of the meeting will ensure clarification
is provided to Complainant, if Complainant indicates she did not hear
a comment and requests clarification. 2
By e-mail dated March 7, 2007, complainant's attorney notified management
of complainant's "concerns" regarding provisions (c) and (d). First,
complainant stated that her work space, was "separate," but that she did
not experience "minimal background noise;" and the space did not "mitigate
the impact of her voice." Complainant suggested utilizing fully enclosed
offices nearby that were not being used. Second, complainant contended
that she had not been given notes from EEOCCRA staff meetings as required.
The complainant hoped to address her concerns "informally."
On March 23, 2007, complainant's attorney wrote to the EEO office, noting
that complainant had unsuccessfully raised her concerns repeatedly,
and formally alleged breach. In the letter, complainant reiterated her
belief that her current work location violated the agreement and that
the agency failed to provide her with written notes of staff meetings.
In its April 23, 2007 decision, the agency found no breach. In response
to complainant's claim that following the EEOCCR's return to its
renovated space complainant was placed in an area that was not quiet,
the agency stated that she was deliberately placed in an area where
she would be subjected to the least background noise. According to the
agency, complainant's work station "is intended to be enclosed with a
special sliding door . . . ." It noted, however, that "[r]egrettably,
although the door was ordered at the same time as other partitions,
it has not yet arrived." Addressing complainant's concerns about noise
created by laborers and movers, the agency stated that the renovations
were not completed and that such interruptions would be infrequent. As
to the offices referenced by complainant, the agency stated that they
were still under renovation, and lacking furniture and carpet.
With respect to the notes from staff meetings, the agency found that
complainant's new supervisor asked complainant at the end of each meeting
whether she heard all of the discussion or needed a written summary, to
which complainant stated it was unnecessary. Finally, the agency noted
that, while not obligated to provide notes from meetings external to
EEOCR, it did provide complainant with such a summary of the most recent
"All Hands" meeting.
On appeal, complainant states that she is a disabled employee with
profound hearing loss and voice abnormalities which are the result
of radiation treatments endured as a child to treat a large facial
hemangioma. According to her doctor, background noises can cause
complainant hearing difficulties. Complainant filed several EEO
complaints, which included claims that the agency did not provide her
with a reasonable accommodation. Complainant stated that the September
29, 2006 agreement purportedly resolved the matters.
However, complainant contends that on February 25, 2007, when the EEO
office returned to its renovated location, she noticed that her work
area was too noisy and that it interfered with her ability to perform
her duties. Additionally, complainant asserted that she was not being
provided with meeting minutes. According to complainant, on March 7,
2007, her attorney notified the agency of her concerns. The next day,
complainant informed her supervisor directly. Complainant states that
in a March 9, 2007 e-mail, the supervisor responded by stating that
". . . the door is being ordered an we just have to wait till it arrives
and [is] installed. Door slamming does not only bother you, but all
of us no matter where your workstation is. I've asked the door problem
be fixed. Please bear with some inconvenience. . . ."
Even after the agency issued its decision, and the door cited in the
decision was installed, complainant notified her supervisor that it was
ineffective. According to complainant, her May 7, 2007 email explained
that her cubicle walls were not tall enough to create a barrier to the
distracting background noises. Complainant contends that her supervisor
merely advised her to inform her co-workers that they were distracting
her.
Complainant argues that while the agreement does not require the agency
to provide her with an office, it does obligate the agency to provide
her with "minimal background noise." Complainant asserts that, instead,
the agency has simply responded by telling her that she needs to address
the problem with her co-workers, the area is intended to be un-intrusive,
and she is not the only employee bothered by the noise.
In response to complainant's appeal, the agency maintains that it "has
not materially breached" the agreement. It selected a work space for
complainant that was away from common work areas and had one permanent
wall. Further, it ordered a door for her cubicle. The agency notes
that it was surprised that after the renovation, the cubicle walls were
only six feet in height3 in order to allow for emergency evacuation and
proper ventilation. It argues that it has substantially complied with
the terms.
The agency acknowledges that it technically breached the agreement
because complainant's work space was not fully enclosed and she did
not receive notes after two staff meetings. The agency asserts that
the standard set forth in the agreement ( i.e. work space with minimal
background noise) is "extremely subjective and essentially immeasurable."
Complainant asserts that whatever is provided, complainant could still
challenge as too loud. Moreover, the agency asserts that it has had
insufficient time to assess the effectiveness of the current situation;
and that once the renovations are completed a proper evaluation of her
work area can be conducted. The agency states that if "after a reasonable
period of time" complainant still believes her work area fails to meet the
agreement language, "she may reassert a claim of breach." Regarding the
notes from meetings, the agency argues that the violation is de minimus
because complainant told her supervisor that she did not need the notes.
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 (c)
In the instant case, we find that the agency breached provision (c).
The agency was required to provide complainant "upon relocation to the
renovated area" with "an enclosed private work area".4 The agency itself
acknowledges that this was not done. The Commission is not persuaded by
the agency's arguments that the violation is immaterial and that it has
not been provided with enough time to evaluate the current work area.
The record shows that complainant notified the agency promptly and
repeatedly about the alleged breach, even suggesting a possible cure.
Provision (d)
With respect to provision (d), complainant does not challenge on
appeal the agency's contention that she told her supervisor that the
notes were unnecessary when asked. Consequently, we find that even
if complainant was not provided with the summaries for two meetings,
the record indicates that any resulting harm was de minimus. Therefore,
we agree with the agency that provision (d) was not breached.
Under the Commission's regulations, in the event of a finding of
non-compliance, the Commission may, in its discretion, remedy the breach
by either ordering the agency to reinstate the underlying complaint for
processing, or alternatively, to undertake specific performance of the
breach provision(s). See 29 C.F.R. � 1614.504(c). In this case, because
the agency has complied with the other provisions of the agreement,
and the Commission favors the settlement of complaints, we conclude that
specific performance of provision (c) is the appropriate remedy.
Accordingly, the agency's decision finding no breach of provision (c)
was improper and is hereby REVERSED. The matter is REMANDED to the
agency for specific performance of provision (c) of the September
29, 2006 settlement agreement, in accordance with the ORDER below.
The agency's decision finding no breach of provision (d) is AFFIRMED.
ORDER
The agency is ORDERED to take the following action:
Within fifteen (15) calendar days of the date this decision becomes final,
the agency shall provide complainant with
(1) "an enclosed private work area" in accordance with provision (c)
of the September 29 2006 settlement agreement.
The agency shall submit a report regarding the ordered actions to the
Compliance Officer in accordance with the order 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 (T0900)
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 (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 21, 2007
__________________
Date
1 This provision included a footnote indicating that the agency was not
obligated to provide complainant with a fully enclosed work area commonly
referred to as an "office;" rather, complainant was to be provided with
a work station "with minimum background noise and which mitigates the
impact of her voice."
2 The settlement agreement also included several additional provisions.
For example the agency was required to provide complainant with: a
promotion to grade GS-12, step 4; a modified Compressed Work Schedule;
training; sick leave; and $22,000.00 in attorney's fees and costs.
3 Previously, the walls were eight feet tall.
4 The agency is reminded of its obligations under the Rehabilitation
Act to make reasonable accommodations to the known physical or mental
limitations of a qualified disabled employee. Section 501 of the
Rehabilitation Act of 1973, as amended, 29 U.S.C. � 791 et seq.
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0120072663
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120072663