01A22178_r
06-11-2002
Helen C. Messer, Complainant, v. Gordon R. England, Secretary, Department of the Navy, Agency.
Helen C. Messer v. Department of the Navy
01A22178
June 11, 2002
.
Helen C. Messer,
Complainant,
v.
Gordon R. England,
Secretary,
Department of the Navy,
Agency.
Appeal No. 01A22178
DECISION
Complainant filed a timely appeal with this Commission from a decision
by the agency dated February 1, 2002, finding that it was in compliance
with the terms of the November 9, 2001 settlement agreement into which
the parties entered.
The settlement agreement provided, in pertinent part, that:
(2) Return responsibility of the Block 0, Block 1 and SDE Training
Programs to the Complainant under a different supervisor by 15
December 2001. [S1] will reinforce with Complainant's new supervisor
the necessity to be a good mentor to Complainant and treat all employees
with professionalism;
(4) Speak with [S2] regarding maintaining a professional relationship
between his point of contact and the Complainant on these programs.
By letter to the agency dated December 26, 2001, complainant alleged that
the agency was in breach of the settlement agreement, and requested that
the agency specifically implement its terms. Specifically, complainant
alleged the agency knew that the imminent promotion of complainant's
previous supervisor to a position as complainant's second level supervisor
would keep the complainant's former supervisor, the alleged discriminating
official, in complainant's chain of command, thereby defeating the
underlying purpose of provision 2. Complainant also claims that while
the agency has accomplished the requirements of provision 4, no positive,
working relationship has emerged between her and the point of contact.
In its February 1, 2002 decision, the agency concluded that the agency has
fulfilled all of its obligations as required by the settlement agreement.
The agency notes that complainant acknowledges the agency has (as agreed
in provision 2) changed her supervisor and nothing in the agreement
addresses the promotion of complainant's former supervisor to a position
as complainant's second level supervisor. Moreover, the agency points
out that complainant concedes the agency's accomplishment of provision
4 - the agency has spoken to the named official regarding complainant's
concerns and provided complainant with suggestions on how to work with
her new supervisor.
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, we find that the agency has fulfilled its obligations
concerning provisions (2) and (4) under the terms of the settlement
agreement. Nothing in the agreement indicates that complainant's former
supervisor will not be promoted to a position elsewhere in her chain of
command, or that the agency knew at the time the settlement agreement
was executed that he would be selected as her second level supervisor.
Similarly, the agency has "spoken with [S2]" as the agency committed
in provision 4. Complainant has not that the agency has breached the
settlement agreement.
We therefore AFFIRM the agency's determination that no breach of the
November 9, 2001 settlement agreement occurred.
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 11, 2002
__________________
Date