01a54079_r
05-03-2006
Tracy S. Scott v. Department of the Navy 01A54079 May 3, 2006 . Tracy S. Scott, Complainant, v. Dr. Donald C. Winter, Secretary, Department of the Navy, Agency.
Tracy S. Scott v. Department of the Navy
01A54079
May 3, 2006
.
Tracy S. Scott,
Complainant,
v.
Dr. Donald C. Winter,
Secretary,
Department of the Navy,
Agency.
Appeal No. 01A54079
DECISION
Initially, the record indicates that on May 11, 2005, complainant's
attorney appealed from the agency's decision dated April 13, 2005,
finding no breach of a settlement agreement which resolved EEOC Hearing
No. 120-A1-4088X. On appeal, the attorney also submits his letter dated
March 29, 2005, which was sent to the agency alleging its noncompliance
of the settlement agreement resolving EEOC Hearing No. 120-A0-4088X.
Thereafter, the attorney submits his appeal brief dated June 2, 2005,
and a copy of a settlement agreement which was signed by complainant
on January 16, 2001, and by the agency on January 17, 2001, resolving
complainant's December 13, 2000 informal EEO complaint.
In response to complainant's appeal at issue, the agency submits its
appeal brief dated June 30, 2005, including a copy of another settlement
agreement, which was signed by both parties on June 18, 2001, resolving
EEOC Hearing No. 120-A1-4088X, Agency Nos. DON 00-31935-054 (dated
February 17, 2000) and DON 00-31935-085 (May 31, 2000).
After a thorough review of the record, including documentation submitted
by the parties on appeal, it appears that the parties entered into two
separate settlement agreements, as described above. It also appears
that the parties are referring to EEOC Hearing No. 120-A1-4088X and EEOC
Hearing No. 120-A0-4088X interchangeably concerning two formal complaints
Agency Nos. DON 00-31935-054 and DON 00-31935-085. Since the parties
are referring to two settlement agreements, we will address whether the
agency breached either agreement.
The January 16/17, 2001 settlement agreement provided, in pertinent part,
that:
The parties agree to the following terms and conditions:
ACTIVITY'S COMMITMENT:
MSC APMC agrees to reassign [c]omplainant to the position of
Personnel Assistant, GS-0203-07 located in the Management Information
Technology/DCPDS Division, MSC APMC, effective 10 January 2001.
. . . .
The [c]omplainant and MSC, APMC agree that they will keep the terms and
fact of this Agreement completely confidential, except to the extent
disclosure may be required by law, regulation, or court order.
The June 18, 2001 settlement agreement provided, in pertinent part, that:
The parties agree to the following terms and conditions:
a. ACTIVITY'S COMMITMENT:
The agency agrees to pay Five Thousand ($5,000.00) Dollars as a lump
sum payable to [complainant's attorney] in settlement of all claims of
relief including damages, attorney fees and costs and any other relief
in full and final settlement of all claims.
MSC APMC agrees to assign [c]omplainant to the position of Marine
Recruitment Specialist, GS-0301-07/09/11 at the GS-07 level.
Complainant will be expected to demonstrate acceptable performance in
this position for up to one year before the APMC will evaluate her for
career progression to GS-9. MSC APMC will make its best efforts to
effect this assignment by the next pay period, that starting 1 July 2001.
MSC APMC agrees to effect the restoration of 40 hours annual leave to
[c]omplainant.
. . . .
The [c]omplainant and MSC, APMC agree that they will keep the terms and
fact of this Agreement completely confidential, except to the extent
disclosure may be required by law, regulation, or court order.
Specifically, complainant's attorney claims that the agency breached
provision 6 of the settlement agreements when during an EEO hearing
involving complainant's coworker's EEO complaint, the agency's attorney
(Agency Attorney 1) asked complainant, who was a witness to that
case, about her prior EEO case. Complainant's attorney indicates
that since that Agency Attorney 1 was not the attorney for the agency
in complainant's previous EEO case, the agency must have disclosed
the settlement agreement to Agency Attorney 1 in order for Agency
Attorney 1 to be able to question complainant about her EEO case.
Complainant's attorney submits a copy of the relevant hearing transcript.
The transcript reflects that during the relevant hearing at issue,
Agency Attorney 1 asked complainant whether she had EEO experience and
had filed an EEO case.
The Commission has held that settlement agreements are contracts between
the complainant and the agency and it is the intent of the parties
as expressed in the contract, and not some unexpressed intention, that
controls the contract's construction. Eggleston v. Department of Veterans
Affairs, EEOC Request No. 05900795 (August 23, 1990). In addition,
the Commission generally follows the rule that if a 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 v. Building Engineering
Services, 730 F.2d 377 (5th Cir. 1984). Although the Commission is not
generally concerned with the adequacy or fairness of the consideration in
a settlement agreement as long as some legal detriment is incurred as part
of the bargain, when one of the parties to a settlement incurs no legal
detriment, the agreement will be set aside for lack of consideration.
See Morita v. Department of the Air Force, EEOC Request No. 05960450
(December 12, 1997).
In response to complainant's appeal, the agency submits a statement, dated
June 30, 2005, from Agency Attorney 1 who cross-examined complainant and
asked her about her filing of EEO complaints. The attorney states that
she was informed that complainant had previously filed EEO complaints.
However, she was not informed how those complaints were resolved or the
contents of any settlement agreement. Complainant does not contest
the foregoing statement. Furthermore, complainant does she submit
any evidence that the agency actually disclosed the contents of the
settlement agreements at issue to Agency Attorney 1. Upon review, the
Commission finds that complainant failed to show that the agency breached
the confidentiality clauses of the settlement agreements. Other than
alleging non-compliance by the agency with the confidentiality clauses,
complainant does not claim that the agency failed to comply with any
other provision of the agreements. Therefore, the Commission finds
that complainant failed to show that the agency breached the settlement
agreements.
Accordingly, the agency's decision finding no settlement breach of either
settlement agreement is AFFIRMED.
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
May 3, 2006
__________________
Date