01992069_r
06-24-2002
Deborah S. Laufer, Complainant, v. Charles R. Barnes, Director, Federal Mediation and Conciliation Service, Agency.0
Deborah S. Laufer v. Federal Mediation and Conciliation Service
01992069
June 24, 2002
.
Deborah S. Laufer,
Complainant,
v.
Charles R. Barnes,
Director,
Federal Mediation and Conciliation Service,
Agency.0
Appeal No. 01992069
DECISION
Complainant filed a timely appeal with this Commission from a November 9,
1998 agency decision finding no breach of the June 18, 1998 settlement
agreement executed by the parties. The Commission accepts the appeal.
See 29 C.F.R. � 1614.402; 29 C.F.R. � 1614.504(b); and 29 C.F.R. �
1614.405.
The settlement agreement in this case is identified as a �Separation
Agreement (hereinafter referred to as �Agreement�). The Agreement
identifies complainant and a co-worker, who were both formerly attorneys
for the agency, as the parties agreeing to withdraw a jointly filed EEO
complaint under its provisions. In general, the Agreement provides
that the agency place complainant and her co-worker in leave status
(Administrative Leave up until a certain date, and then Leave Without
Pay for a specified number of months) while they seek other employment.
In addition, the Agreement sets forth various conditions concerning
the association of the parties during the pendency of this leave status
period.
Complainant contends that the Agreement should be declared void.
Specifically, complainant claims that she executed it under duress (threat
of an agency investigation which could result in severe disciplinary
actions as well as criminal charges and sanctions by the legal bar)
and that the agency engaged in bad faith concerning actions taken
immediately prior to the execution (disconnected voice mail and e-mail
and restricted access to the agency premises via a memorandum posted
at the security guard desk). Additionally, complainant claims that she
rescinded her execution of the Agreement prior to the agency's execution,
arguing that she effectively rescinded the agreement in doing so.
Complainant additionally contends that the agency materially breached the
Agreement in actions that violated its confidentiality and anti-defamation
provisions. In particular, complainant refers to a confrontation which
took place on October 19, 1998, when she entered the agency premises to
retrieve some items of personal property, e.g., several large cushions.
Complainant claims that a named male employee (who worked as an assistant
to the agency Director) publically accused her of being in the building
illegally and of being a thief, and then physically assaulted her, by
slapping at her hands and grabbing her breasts, in the process of forcibly
removing her ID badge from around her neck. Complainant additionally
contends that another agency employee (a female) joined in the verbal
confrontation, and that they both tried to restrain her from leaving
the building, demanding that the security guard detain and search her.
When the security guard declined to do so, complainant claims that the
female employee followed her out onto the street and made additional
public threatening remarks. Complainant indicates that she called
the police, and that the male employee again breached the Agreement by
disclosing to the police that complainant had been fired.<1>
In pertinent part, the confidentiality and anti-defamation provisions
of the Agreement read as follows:<2>
(1) FMCS officials (in their official and personal capacities), .... and
anyone acting on their behalf or at their direction, shall maintain the
strict confidentiality of the terms and conditions of this Agreement
and the terms under which claims and/or disputes between the parties
were resolved. The parties shall not disclose any information relating
to the terms or nature of this Agreement to any other individual except
their immediate families, and as needed to effectuate this agreement or
as required by operation of law. In the event that any such information
is disclosed by FMCS officials, ... the parties agree that they will
direct such individual or individuals to hold such information strictly
confidential.
(2) By executing this Agreement, the parties acknowledge that they
understand that any disclosure of any portion of this agreement
or the terms under which their disputes or differences have been
resolved, except disclosures permitted under the terms of this
paragraph or Paragraph 9, will constitute a material breach of this
mutual obligation of confidentiality.... If the FMCS is found to have
materially breached the Agreement, [complainant] will have the right to
request specific performance or, until December 31, 1999, to reinitiate
the EEO process from the point at which they left off prior to executing
the Agreement. ...
(3) The parties recognize the need for the FMCS to maintain harmonious
relationships with its workforce, the public, and the business
and labor community. The parties also recognize [complainant's]
interest in maintaining contacts in the labor-management and federal
communities as they seek new employment. To this end, FMCS officials
(in their official and personal capacities), [complainant], and anyone
acting on their behalf or at their direction, therefore agree that they
shall not disparage each other (including disparagement of current and
former directors, employees, or agents of FMCS) or make or publish any
communication that disparages each other. In this spirit, the parties
agree that in response to any inquiry from any person other than their
families or attorneys regarding this separation agreement, the parties
shall respond in words or substance that the parties reached a mutual
agreement the terms of which are confidential, and that the parties are
not at liberty to discuss the Agreement. ...
Furthermore, in addition to the claims of �material breach� of these
provisions, complainant also claims that the agency breached additional
provisions of the Agreement because of the above described confrontation,
as well as by refusing to re-establish her voice mail and e-mail.
In pertinent part, the involved provisions read as follows:
[Complainant] will cease reporting to work effective
immediately. ... [Complainant] will make an appointment with a designated
[agency] official to remove any remaining personal items at a mutually
agreeable time.
The [agency] agrees to forward promptly all non-FMCS mail addressed
to [complainant]. [Complainant] shall provide the address to which
this mail should be sent. [The agency] shall act in good faith,
but the accidental failure to forward mail shall not be a breach of
this Agreement.
By letter to the agency dated October 29, 1998, complainant alleged that
the agency breached the Agreement, as referenced above, and requested
that the agency specifically implement its terms. In its decision,
the agency denied complainant's breach claim. The agency found that
provision 4 was not breached in the October 19, 1998 confrontation
because complainant made arrangements with an employee who was not a
designated agency official, and because she did, in fact, remove her
cushions. Additionally, the agency determined that it did not breach the
confidentiality provisions. The agency determined that none of its terms
had been disclosed to any agency employees. Finally, the agency found
that no agency official had made disparaging remarks about complainant,
nor did any agency official direct any employee to make such remarks.
On appeal, complainant repeats her arguments as set forth above,
requesting that the Commission order rescission of the Agreement and
reinstatement of her EEO complaint. In response, in pertinent part, the
agency argues that complainant's �co-party' in this case filed an appeal
with the Merit System Protection Board (MSPB), which issued a decision
in which it found that the Agreement was valid and binding, such that
the instant claim is barred by the doctrine of collateral estoppel.
In reply, complainant argues that the doctrine of collateral estoppel
does not apply because complainant was not a party in the MSPB decision.
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 addressing the issue of collateral estoppel raised by the parties on
appeal, we find that because complainant was not a party in the MSPB
proceeding, the MSPB decision issued on the appeal of her �co-party'
cannot act to bar the instant claim. To do so would result in depriving
complainant of the opportunity to set forth her own claim on her own
behalf, which could conceivably result in the presentation of different
evidence yielding a different outcome. See Buchhagen v. Department of
Health and Human Service, EEOC Request No. 05940948 (June 3, 1996).
Next, after careful review of the record, we find that complainant failed
to show that the Agreement should be rescinded. Specifically, we find
no evidence that complainant executed the Agreement under duress of the
agency's �threat� to initiate an investigation against her concerning
an allegation of serious misconduct. Rather, we find that the agency
fully disclosed its intention to undertake this investigation all
along, and while its forebearance may have operated as an inducement to
complainant to enter the Agreement, we find nothing to suggest that the
agency wielded it as a threat. We additionally find that complainant
was represented by competent counsel in negotiating the terms of the
Agreement. Furthermore, we find that the agency's discontinuation of
complainant's voice and e-mail, and implementation of restricted building
access, fail to constitute bad faith given that provision 4 mandates
that complainant cease coming into work immediately and would have no
need of her office voice mail or e-mail or unrestricted access to the
building.<3> Finally, regarding complainant's claim that she rescinded
the Agreement prior to the agency's execution, we find no evidence
to support this contention, and note that the Agreement is signed and
dated by the proper parties. Moreover, we find that the performance
of the terms of the Agreement by both parties effectively ratifies the
Agreement based on the contract doctrines of subsequent ratification
and detrimental reliance. See Kilpatrick v. Department of Education,
EEOC Appeal no. 01980808 (October 2, 1998); Jacobsohn v. Department of
Health and Human Services, EEOC Request No. 05930689 (June 2, 1994).
Accordingly, for the reasons set forth above, we find that the agency
concluded that the Agreement at issue is valid and binding on the parties,
and we AFFIRM the agency's decision regarding this claim.
Regarding complainant's claim of material breach of the confidentiality
and anti-defamation provisions, we find that this claim appears to relate
exclusively to the events of the October 19, 1998 confrontation, which
is the subject of complainant's separate complaint of sexual/retaliatory
harassment. Therefore, under the circumstances of this case, we find
that complainant may not identify certain events of this same incident
to support an additional claim of material breach. Furthermore, based on
the plain meaning of their terms, we find that neither the confidentiality
nor anti-defamation provisions were intended to address an incident such
as the October 19, 1998 confrontation, which purportedly involved not
only �public disparagement,�but also sexual harassment and an unprovoked
physical assault of complainant. We find that a confrontation of this
nature clearly exceeds the scope of either of these provisions, and
that the claim is more properly construed and addressed as a separate
complaint. For these reasons, we find no breach of the confidentiality
and anti-defamation provisions.
Similarly, in addressing complainant's provision 4 breach claim, we again
find that this concerns the October 19, 1998 confrontation, which is more
properly addressed in complainant's separate complaint, as referenced
above. Moreover, we find that provision 4 in pertinent part requires
complainant to make �an appointment� with a �designated agency� official
prior to retrieval of her personal property, but does not address the
agency's obligations thereafter. In this case the record reflects that
complainant merely left a voice mail message with a certain co-worker,
and did not make the �appointment� required by provision 4. Therefore,
on October 19, 1998, complainant arrived at the agency unannounced, which
apparently precipitated the confrontation which followed. Under these
circumstances, we do not find that the agency breached provision 4.
Regarding complainant's claim of breach of provision 5, we find that this
provision obligates the agency to forward to complainant her non-agency
related mail, with complainant providing the forwarding address. Here,
it appears that complainant argues that the agency's discontinuance of her
voice mail and e-mail were not only acts of bad faith, as discussed above,
but that the agency's refusal to re-establish these services constitutes
a breach of the Agreement, presumably provision 5. However, based on
its plain meaning, we find that the reference to �mail� in provision 5
does not reasonably include voice mail and/or e-mail. Moreover, review
of the Agreement reveals that the parties did not include a provision
to address the administration or discontinuance of complainant's voice
mail and e-mail during the leave status period prior to her separation
from employment. To the extent that complainant intended that her
voice mail and e-mail would be continued by the agency for any set
period, she should have specifically included this as a provision in
the Agreement. See Jenkins-Nye v. General Service Administration, EEOC
Appeal No. 01851903 (March 4, 1987). Accordingly, we find no breach
of provision 5, or any other provision of the Agreement, regarding the
agency's discontinuance of her voice mail and e-mail.
In conclusion, for the reasons set forth above, we find that the Agreement
is valid and binding on the parties, and we find no breach as claimed
by complainant herein.
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
June 24, 2002
__________________
Date
1According to Commission records, complainant
filed a separate complaint alleging sexual and retaliatory harassment
regarding this incident, and the agency's dismissal of that complaint
is currently pending on appeal as Appeal No. 01993730.
2The Agreement provisions set forth herein are re-numbered for ease
of reference.
3We note complainant's argument that she needed to have her office voice
mail and e-mail operational to assist her in obtaining new employment;
however, we find no evidence that the agency discontinued these services
as a bad faith attempt to thwart complainant's efforts to obtain new
employment.