01981771_r
06-23-1999
Betty J. Stage, Appellant, v. Alexis M. Herman, Secretary, Department of Labor, Agency.
Betty J. Stage, )
Appellant, )
)
v. ) Appeal No. 01981771
) Agency Nos. 4-11-152
Alexis M. Herman, ) 5-11-108
Secretary, ) Hearing No. 100-95-7847X
Department of Labor, )
Agency. )
)
DECISION
On May 19, 1997, appellant filed a timely appeal with the Commission
for a determination of whether the agency has complied with the terms
of a settlement agreement. See 29 C.F.R. �1614.402, 504(b); EEOC Order
No. 960, as amended.
ISSUE PRESENTED
The issue on appeal is whether the agency breached the settlement
agreement.
BACKGROUND
On December 4, 1995, appellant and the agency entered into a settlement
agreement to resolve two EEO complaints filed by appellant. The agreement
stated in relevant part that:
4. The agency will correct appellant's Official Personnel File (OPF)
to reflect that she was reassigned from the position of Chairman
of the Board/Chief Administrative Appeals Judge, Benefits Review
Board on December 4, 1994, to Administrative Appeals Judge, Office of
Administrative Appeals. The agency shall provide the appellant copies of
the SF-50's reflecting this correction within 15 days of the execution
of this agreement. All agency references to the reassignment to Senior
Adjudicator shall be expunged from the OPF within 15 days of the execution
of this agreement. All references to the reassignment will be expunged
from appellant's other files or records within 30 calendar days, with the
exception of legal and EEO files, which will be maintained by the Office
of the Solicitor. Those employees needed to process or implement the
settlement agreement shall be provided either a copy of the agreement
or shown the agreement. The employees who will be provided a copy of
the agreement are the Acting Director, Office of Administrative Appeals,
the Supervisory Personnel Specialist, Division of Staffing and Special
Programs, Office of the Assistant Secretary for Administration and
Management; the Director, Office of Financial Management, the Director,
Directorate of Civil Rights, and the Counsel for Labor Relations,
Secretary of Labor. The employees who may be shown the agreement as
required, but not provided a copy of the agreement, are: the appropriate
staff of the Supervisory Personnel Specialist; the Director, Office of
Financial Management; and the Director, Directorate of Civil Rights.
6. The agency shall take no action and make no statement that would
hinder appellant's ability to effectively compete for future Federal,
state or private employment, including but not limited to, contradicting
appellant's corrected personnel records. To effectuate this provision,
the parties agree to the following:
(a) The agency designates the Acting Director, Office of Administrative
Appeals (OAA), and in his absence, the Supervisory Personnel Specialist,
Division of Staffing and Special Programs, or the Acting Director's
successor, as a point of contact for any inquiries relating to appellant's
employment history. Appellant agrees to use this point of contact
for references. As a condition precedent, appellant will notify the
point of contact in writing, in advance, that she is using him or her
as an employment reference and shall expressly refer in her letter to
the terms agreed to in this subparagraph of the agreement. The point of
contact will provide the following information: employment dates; the fact
that appellant occupied the positions of Member, Benefits Review Board,
Chairman of the Board and Chief Administrative Appeals Judge, Benefits
Review Board and Administrative Appeals Judge, OAA; the fact that these
positions did not utilize performance appraisals; appellant's salary;
and the fact that she retired or resigned effective September 30, 1996,
after 33 years of satisfactory service.
(b) No agency personnel involved in the development of this settlement
agreement will communicate to any third parties, including agency
personnel, other than those having responsibility for the implementation
of this agreement, any contrary, conflicting or otherwise derogatory
information that contradicts appellant's corrected personnel records.
The record reveals that in a letter to the agency dated April 13,
1997, appellant stated that management has not complied with the sixth
provision of the settlement agreement. According to appellant, the
agency communicated conflicting and derogatory information to a third
party, and this third party has made statements specifically designed
to hinder appellant's ability to effectively compete for employment.
Appellant requested that her complaint be reinstated and that she be
awarded reasonable fees. Having not received a response from the agency,
appellant filed the instant appeal on May 19, 1997.
By letter dated June 6, 1997, the agency requested that appellant
provide information such as the specific statements that were made and
to whom these statements were made. By letter dated June 10, 1997,
appellant stated that in one statement, the Acting Director volunteered
to a member of the media the information that she was reassigned on a
date certain to a specific organization. Appellant claimed that the
Acting Director's remark suggested that the reassignment was involuntary
and it certainly generated interest in why there was a reassignment.
According to appellant, the Acting Director as a point of contact
provided more information than is allowed under the settlement agreement.
Appellant also made reference to another statement by an agency employee
that was before a reviewing body in another state.
By letter dated July 17, 1998, appellant explained to the agency the
nature of the latter statement. According to appellant, an anonymous
individual apparently from the agency made malicious and false statements
about her in a letter to the Supreme Court of Ohio.<1> This letter
indicated that appellant had been terminated by the agency, that she was
double dipping funds and engaging in fraud, and that she was unworthy
to have a law license in Ohio. Appellant declared that this statement
resulted in an initial determination that she was not fit to practice law
in Ohio. Appellant stated that she was required to appeal this adverse
determination to the Supreme Court of Ohio and that she lost the ability
to practice law in Ohio for ten months.<2> According to appellant,
she lost $20,000.00 in income due to her inability to practice law in
Ohio for a ten-month period. Appellant noted that during its review of
her case, the Ohio Supreme Court directed the parties not to discuss
the matter outside of that forum. With regard to the statement made
to a member of the media by the Acting Director, appellant argues that
instead of providing the information specifically set forth in the
settlement agreement, the Acting Director volunteered to an outside
party in Ohio that she had been reassigned on December 4, 1994, to the
Office of Administrative Appeals, and that this led to speculation in
Ohio about the reasons the agency took this action. Appellant asserted
that this statement cast a cloud over her during the period that she
was a candidate for admission to the bar in Ohio.
In letters to the agency dated October 21, 1998, and November 2, 1998,
appellant reiterated her request for compensation for the salary she lost
due to the agency's breach of the settlement agreement. On November 19,
1998, appellant explained to the Commission the events that occurred
since she initially filed her appeal. In her supporting brief, appellant
contends that the Acting Director's comment to the journalist from Ohio
exceeded the specific and limited information that the agency agreed
would be provided. Appellant notes that on May 1, 1997, the journalist
wrote a letter to appellant's employer which stated in part:
The spokesperson from the [agency], [the Acting Director], also said that
[appellant] was reassigned on 12/4/94 to the Office of Administrative
Appeals, where she remained an administrative appeals judge, yet her
resume doesn't reflect this change. Is the [agency] correct?
Appellant emphasizes that the point of contact was to provide only the
following information: employment dates, the fact that appellant occupied
the positions of Member, Benefits Review Board, Chairman of the Board,
and Chief Administrative Appeals Judge, OAA. Appellant maintains that
the Acting Director cannot credibly assert that he did not know it was
inappropriate and a violation of the settlement agreement to mention that
appellant had been reassigned. Appellant argues that the settlement
spelled out that all agency references to the reassignment shall be
expunged from her official personnel file within fifteen days of the
execution of the agreement and that all references to the reassignment
will be expunged from her other files or records within thirty calendar
days, with the exception of legal and EEO files.
With regard to the letter that was sent to the Ohio Supreme Court,
appellant maintains that if the Acting Director did not make the
statement, then he either carelessly or deliberately permitted another
agency employee to have knowledge of appellant's job opportunity,
therefore enabling that person to take action to hinder her ability to
compete for employment. Appellant notes that the settlement agreement
provided that �the agency shall take no action and make no statement
that would hinder appellant's ability to effectively compete for future
Federal, state or private employment, including but not limited to,
contradicting appellant's corrected personnel records.� Further,
appellant claims that the malicious statements made about her were
false. Appellant states that there is a history of agency employees
acting to hurt her employment interests, and of letters being sent to
outsiders for that purpose. According to appellant, an agency employee
wrote to the Office of Personnel Management's Administrative Law Judge
Office alleging that she was not fit to be an Administrative Law Judge.
Appellant argues that as a result of the delay in her admission to the
Ohio bar, she was reassigned from the position of General Counsel to
the lower paying position of Managing Counsel. Appellant states that
she should be paid $20,000.00 to compensate her for her income loss.
Appellant further requests that reasonable attorney's fees be awarded.
In response, the agency asserts that the Acting Director's response to
the journalist did not violate the settlement because the reassignment
is consistent with appellant's corrected personnel records. The agency
notes that the Acting Director was prohibited from communicating
�any contrary, conflicting or otherwise derogatory information that
contradicts appellant's corrected personnel records.� Moreover, the
agency states that the Acting Director does not remember utilizing
the term �reassignment,� but rather he provided the journalist with a
sequential listing of positions held by appellant. The agency suggests
that the journalist may have inferred that a reassignment occurred.
With regard to the letter that was sent to the Ohio Supreme Court,
the agency asserts that appellant has no evidence of who drafted the
alleged letter. The agency states that the Acting Director denies that
he drafted the letter and that he has no knowledge of the identity of
the author of the alleged letter. According to the agency, the Acting
Director further denies encouraging anyone to make a disparaging remark
against appellant. The agency maintains that the sixth provision of
the settlement agreement does not render it liable for any inappropriate
statement made by any employee regarding appellant. The agency states
that only certain employees were expressly precluded from making or
encouraging others to make inappropriate remarks or remarks contradicting
appellant's personnel records.
ANALYSIS AND FINDINGS
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.
If the complainant believes that the agency has failed to comply with
the terms of a settlement agreement or final decision, the complainant
shall notify the EEO Director, in writing, of the alleged noncompliance
within 30 days of when the complainant knew or should have known of the
alleged noncompliance. The complainant may request that the terms of
the agreement be specifically implemented, or, alternatively, that the
complaint be reinstated for further processing from the point processing
ceased.
EEOC Regulation 29 C.F.R. �1614.504(b) provides that the agency shall
resolve the matter and respond to the complainant, in writing. If the
agency has not responded to the complainant, in writing, or if the
complainant is not satisfied with the agency's attempt to resolve the
matter, the complainant may appeal to the Commission for a determination
as to whether the agency has complied with the terms of the settlement
agreement or final decision. The complainant may file such an appeal
35 days after he or she has served the agency with the allegations of
noncompliance, but must file an appeal within 30 days of his or her
receipt of an agency's determination.
Settlement agreements are contracts between appellant 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 interpreting settlement agreements, the Commission
has applied the contract principle known as the "plain meaning rule"
which holds that where a writing is unambiguous on its face, its
meaning is determined from the four corners of the instrument without
resort to extrinsic evidence. Smith v. Defense Logistics Agency,
EEOC Appeal No. 01913570 (December 2, 1991). Moreover, other standard
contractual requirements such as the necessity of consideration, apply
in this context. Collins v. United States Postal Service, EEOC Request
No. 05900082 (April 26, 1990); Shuman v. Department of the Navy, EEOC
Request No. 05900744 (July 20, 1990); Roberts v. United States Postal
Service, EEOC Appeal No. 01842193 (May 9, 1985).
In the instant matter, appellant alleged that the agency breached the
settlement agreement when an anonymous agency employee wrote a letter
to the Ohio Supreme Court that contained malicious and false statements
about her and when the Acting Director mentioned to a member of the
media her reassignment to the Office of Administrative Appeals. With
regard to the letter that was sent to the Ohio Supreme Court, we note
that appellant has not established the identity of who wrote the letter.
It has not been established that any agency personnel involved in the
development of the settlement agreement made inappropriate remarks about
appellant to the Ohio Supreme Court. The settlement does not render the
agency liable for any employee's inappropriate statement about appellant.
The agreement focuses on statements that would be made by the point of
contact, the Acting Director, the Supervisory Personnel Specialist in
the Acting Director's absence, or the Acting Director's successor, and
agency personnel involved in the development of the settlement agreement.
It has not been demonstrated that the anonymous letter to the Ohio
Supreme Court was written by a party prohibited from doing so.
The settlement agreement provides that the Acting Director, as a
point of contact, will provide the following information concerning
appellant: employment dates; the fact that appellant occupied the
positions of Member, Benefits Review Board, Chairman of the Board
and Chief Administrative Appeals Judge, Benefits Review Board and
Administrative Appeals Judge, OAA, the fact that these positions did
not utilize performance appraisals, appellant's salary and the fact
that she retired or resigned effective September 30, 1996, after 33
years of satisfactory service. We find with regard to the Acting
Director's alleged reference to appellant's reassignment to the Office
of Administrative Appeals on December 4, 1994, was a breach of provision
six of the settlement agreement. While the Acting Director, as point of
contact, could identify the position occupied by appellant, he could not
identify the manner in which appellant moved from one position to another.
Having found a breach of the settlement, we find that in view of the
execution of the other provisions of the agreement, including appellant's
retirement in September 1996, and the fact that several years have passed
since the execution of the agreement, equitable considerations require
that the remedial relief include specific enforcement of the agreement,
rather than reinstatement of appellant's complaint. Furthermore, since
we have found a breach of the agreement, appellant is a prevailing party
entitled to attorney's fees.
CONCLUSION
We find that the agency breached the settlement agreement of December 4,
1995, in part. Accordingly, the agency shall take the corrective actions
as ordered below.
ORDER
The agency is hereby ORDERED to specifically implement the December 4,
1995 settlement agreement, in particular provision six, insuring that
the Acting Director, as point of contact, only divulges the information
as specified in provision six when appropriate.
The agency shall request from appellant a verified statement of costs and
attorney's fees for appellant's attorney's work on the breach allegation
on which appellant prevailed in accordance with 29 C.F.R. �1614.501 and
the provision below.
A copy of documentation indicating that the agency is specifically
enforcing the agreement and a copy of the request to appellant as
specified in provision (2) must be sent to the Compliance Officer as
referenced below.
ATTORNEY'S FEES (H1092)
If appellant has been represented by an attorney (as defined by
29 C.F.R. �1614.501 (e)(1)(iii)), he/she is entitled to an award of
reasonable attorney's fees incurred in the processing of the complaint.
29 C.F.R. �1614.501 (e). The award of attorney's fees shall be paid
by the agency. The attorney shall submit a verified statement of fees
to the agency -- not to the Equal Employment Opportunity Commission,
Office of Federal Operations -- within thirty (30) calendar days of this
decision becoming final. The agency shall then process the claim for
attorney's fees in accordance with 29 C.F.R. �1614.501.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0595)
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 appellant. If the agency does not comply with the Commission's
order, the appellant may petition the Commission for enforcement of
the order. 29 C.F.R. �1614.503 (a). The appellant 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. �� 1614.408, 1614.409, and 1614.503 (g). Alternatively,
the appellant 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. �� 1614.408 and 1614.409. 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) (Supp. V 1993). If the
appellant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. �1614.410.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (T0993)
This decision affirms the agency's final decision 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 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.
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. 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 (Z1092)
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:
June 23, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations1 The Ohio Supreme Court was in the
process of evaluating appellant's candidacy for membership in the
Ohio Bar Association.
2 On April 29, 1998, the Ohio Supreme Court approved appellant for
admission to the practice of law in Ohio.