01A04819_01A10135_r
07-27-2001
Anne S. Wood, Complainant, v. Gordon R. England, Secretary, Department of the Navy, Agency.
Anne S. Wood v. U.S. Department of the Navy
01A04819, 01A10135
July 27, 2001
.
Anne S. Wood,
Complainant,
v.
Gordon R. England,
Secretary,
Department of the Navy,
Agency.
Appeal Nos. 01A04819
01A10135
DECISION
Complainant timely filed the captioned appeals with this Commission
from final agency decisions issued on May 26, 2000 and August 28,
2000, respectively. In each decision, the agency concluded that
it had complied with the terms of the September 22, 1999 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. We hereby consolidate
these appeals. See 29 C.F.R. � 1614.404.
The settlement agreement provided, in pertinent part, that the agency
agreed to:
(1) Exert best efforts to assist complainant in obtaining employment
by contacting other activities within the Department of Navy and the
Smithsonian Institution (National Museum of American Art).
(2) Explore possibilities of detailing complainant to another activity
within Naval District Washington.
(3) Detail complainant to work as a member of the staff of the Navy Art
Collection under the direct supervision of [named official] effective
on the date of the signing of this agreement until 01 March 2000.
All necessary equipment (including computer, peripherals and associated
furniture) will be transferred from complainant's current work site to
complainant's detailed work site during this time period.
(4) Pay attorney fees and costs by 30 November 1999. ...
(5) Issue a rating of �Pass� to complainant on her performance
appraisal for the period ending 30 June 1999.
Advise [complainant's current supervisor] to have minimal contact
with complainant.
Write a thank you note to [named individual] for his volunteer
contributions to the Navy Museum.
Provide commendatory documentation to complainant for her work done on
the Hunley exhibit and First Lady's visit.
Approve 1 month annual leave for complainant to attend a wellness center.
Ensure no manager, supervisor, officer, or other employee will in any
manner, restrain, interfere, coerce, or retaliate against complainant
for exercising her right to oppose practices made unlawful by, or
for participating in proceeding pursuant to, federal equal employment
opportunity law, retaliate against the complainant for exercising her
right to oppose practice made unlawful by, or for participating in
proceedings pursuant to, federal equal employment opportunity law.
Complainant agrees to return on 01 March 2000 to the design position
in the Navy Museum, or she will go on LWOP effective 01 March 2000 and
tender her resignation effective 01 May 2000.
Appeal No. 01A04819
On April 4, 2000, complainant filed an informal complaint with the
agency's EEO office claiming breach of provision 10 above. Specifically,
complainant claimed that upon her return to her design position, as
specified in provision 11, her supervisor engaged in a campaign of
retaliatory harassment against her with the aim of forcing her out of
her position. Complainant contends that her supervisor changed her hours,
removed a significant portion of her duties, and took away her computer
equipment, substituting far inferior equipment, making it impossible to
perform her remaining duties.
In its May 26, 2000 decision, the agency denied that it had breached
the settlement agreement, noting that an investigation revealed that
the computer equipment for all of the staff had been changed over to a
new system. Complainant now appeals this determination.
Appeal No. 01A10135
Subsequently, by letter to the agency dated May 30, 2000, complainant
additionally claimed that the agency had breached most of the terms of
the settlement agreement. Complainant contends that the agency breached
provisions 1 and 2 above, noting that she was unaware of any efforts made
by the agency to procure her another position. Regarding provision 3,
complainant claims that the detail only occurred after multiple requests
for compliance, and that the agency hacked into her computer equipment,
changed her password, and locked her out of files. Complainant also
asserts that the agency breached provisions 4 and 5 because neither of
these actions were accomplished within a 30 day period; and, that it
breached provisions 7 and 8 because both the letter and commendation
were vague and incomplete. Complainant additionally claimed breach of
provision 9, arguing that the agency's late payment of attorney fees
resulted in her being unable to pay for a session at a wellness center.
Furthermore, complainant claimed breach of provision 6, arguing that
the agency violated this provision by placing her under the direct
supervision of this named supervisor, who in turn demanded frequent
one-on-one meetings and closely monitored her work. Finally, complainant
describes numerous and various incidents of harassment by this supervisor,
including those identified in her prior breach claim, contending that
this conduct constitutes not only a separate actionable claim, but a
violation of provision 10 as well.
In its August 28, 2000 decision, the agency concluded that it did
not breach the settlement agreement as claimed by complainant. As to
provisions 1 and 2, the agency indicated that it made several contacts
and attempts to place complainant in another position, but found that no
suitable vacancies were available, noting that complainant was advised of
these efforts verbally and by e-mail. The agency also denies a breach
of provision 3, indicating that it provided complainant with the detail
and all equipment necessary to perform the job. Regarding provisions 4,
5, 7, and 8, the agency noted that each provisions had been satisfied,
and denied a breach. As to provision 6, the agency argues that the
limited contact referred only to the time during complainant's detail,
and noted that complainant had an option (provision 11) not to return
to her former position if she did not wish to be placed under the named
official's supervision. The agency also denied a breach of provision 9,
arguing that complainant did not request annual leave for this purpose
because she had an inadequate leave balance. Complainant now appeals
this determination.
In her appeal statement, elaborates upon the same arguments made in her
breach claim. Complainant further indicates that the named supervisor
persisted in creating extremely adverse working conditions, compelling her
to retire early from federal service. Therefore, as relief, complainant
requests damages for lost income, deriving from various sources, legal
fees, non-pecuniary compensatory damages, and damages for destruction
of her government career and diminished pension.
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 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).
In the instant case, after careful review, we find that the agency did
not breach the settlement agreement. Regarding provisions 1 and 2, the
agency describes in some detail its efforts to find complainant another
position, naming specific contact individuals, but indicates that no
suitable vacancies were available. Complainant does not dispute that
the agency undertook these efforts, or claim that suitable vacancies
were available. Therefore, we find no breach of these provisions.
Regarding provision 3, the record shows that the agency placed complainant
in this detail, as specified, and there is no indication of performance
deficiencies related to computer problems. Moreover, while the agency
may not have timely performed its responsibilities under provisions
4 and 5, or may not have written particularly detailed or exceptional
commentaries in satisfying provisions 7 and 8, the agency did, in fact,
perform its duty as to each of these provisions. Regarding provision 9,
we again find no breach because of the evidence that complainant did
not apply for this leave.
Furthermore, with respect to provision 6, we find that the clear meaning
of this provision is to limit all contact between complainant and this
named supervisor. We recognize that the alternative to complainant's
decision to be placed in her former position was to resign, pursuant
to provision 11. On the other hand, we recognize the impossibility
of substantially limiting contact between a first line supervisor and
a subordinate. Therefore, we find that provision 6 can logically only
pertain to that period when complainant was detailed to another position.
Accordingly, because no excessive contact is claimed during complainant's
detail, we find no breach of this provision.
Complainant describes a wide variety of adverse incidents perpetrated by
the named supervisor to demonstrate breach of provision 10. However,
even as noted by complainant herself, many of these actions must be
considered separate complaints of discrimination and reprisal.
EEOC Regulation 29 C.F.R. � 1614.504(c) states that allegations that
subsequent acts of discrimination violate a settlement agreement shall be
processed as separate complaints rather than under 29 C.F.R. � 1614.504.
Therefore, we find that those actions described by complainant as
breaching provision 10 must be brought under 29 C.F.R. � 1614.106 as an
individual complaint of discrimination against the agency, and we find
no breach of provision 10 for this reason.
Finally, in reviewing the record before us, we find that complainant
claims harassment due to a hostile work environment, based on reprisal,
sex, and age, and also claims constructive discharge in her statements
that she retired �early� to escape her hostile work environment
and that her government career was ruined by the named supervisor.
Should complainant desire to pursue these claims as separate complaints,
if she has not already done so, we advise complainant to immediately
contact an EEO Counselor to initiate the EEO process.
Accordingly, for the reasons set forth above, we conclude that the agency
complied with the terms of the settlement agreement, and we AFFIRM both
agency decisions finding no breach of its provisions.
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
July 27, 2001
__________________
Date