0120080153
03-10-2008
Blanca Salinas, Complainant, v. Michael W. Wynne, Secretary, Department of the Air Force, Agency.
Blanca Salinas,
Complainant,
v.
Michael W. Wynne,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 0120080153
Agency No. 9V1M07336
DECISION
Complainant filed a timely appeal with this Commission from a final
decision (FAD) by the agency dated September 12, 2007, finding that
it was in compliance with the terms of the August 9, 2007 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.
The settlement agreement provided, in pertinent part, that:
(b) All promises, conduct, and statements made in the course of
reaching this Settlement Agreement, including the fact of settlement,
are confidential and will not be disclosed voluntarily to the extent
permitted by law. The complainant agrees that he/she will not disclose
or discuss this settlement with other agency employees (except his or
her representative and responsible management personnel or their agents).
The agency agrees it will not disclose or discuss this settlement except
as necessary for implementation. The complainant authorizes the agency
to disclose the terms of this Agreement to agency officials who may need
to review and approve the terms of the Agreement; and
(4) The complainant is advised that the complainant may have specific
rights or claims under the Age Discrimination in Employment Act, 29
U.S.C. � 633a, as amended by the Older Workers Benefit Protection Act,
29 U.S.C. � 626 (f)(1), regarding any potential settlement agreement
affecting [her] claim of age discrimination. The Complainant
was previously advised of these rights in writing on 29 June 2007.
This prior notice will be attached to this settlement agreement and be
made part of the agreement. To accept this settlement agreement and
resolve this complaint today, the Complainant should sign it below.
If the Complainant elects not to sign this agreement today, but at a
later time within the 21-day period of consideration provided for by
Federal law, it must be signed and returned to the ADR Office, OC-ALC/DS
(ADR), located at Room 1AD83A of Building 3001 on or before the last
day of this time period 30 August 2007.
By letter to the agency dated September 5, 2007, complainant alleged that
the agency was in breach of the settlement agreement, and requested that
the agreement be rescinded and her complaint be reinstated. Specifically,
complainant alleged that the agency failed to honor her rights under the
Older Workers Benefit Protection Act (OWBPA), when she was not permitted
to rescind the agreement. Complainant also alleges that the agency
violated the confidentiality provision of the agreement by discussing
her agreement with an EEO counselor.
In its September 12, 2007 FAD, the agency concluded that it had not
breached the agreement as alleged. Specifically, the agency stated that
complainant advised the agency of her decision to rescind the settlement
agreement after the expiration of the 7-day period in which she was
permitted to do so. The record indicates that complainant was advised
in a message to her office email account that final coordination of the
agreement between the parties occurred on August 13, 2007. Therefore,
the time period for rescission of the agreement would expire on August
20, 2007. The record indicates that complainant contacted the EEO
office regarding her decision on August 21, 2007. When complainant was
told that she could no longer rescind the agreement she stated that she
had been out of the office on sick leave when the agency emailed her
that the agreement had been finalized and she was not aware that the 7
day period expired on August 20, 2007. The record indicates that upon
investigation of complainant's claims, the agency discovered that during
a counseling interview on an unrelated matter, complainant advised the EEO
counselor that she had until August 20, 2007 to change her mind regarding
a settlement agreement she had entered into with the agency. The record
contains an affidavit from the EEO counselor regarding complainant's
statement to him regarding the expiration of the settlement agreement.
Complainant alleges that the agency violated the confidentiality provision
of the agreement by discussing the settlement with the EEO counselor.
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 O 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 complainant has not demonstrated that
the agency breached the agreement as alleged. Regarding complainant's
confidentiality claim, we find that the agency's contact with an EEO
counselor regarding the matter was not a breach of the agreement.
The Commission has long held that contact with individuals reasonably
assumed to be aware of a settlement agreement, in this case an EEO
counselor, does not constitute a breach of the confidentiality provision
of the agreement. See Marshall v. Department of Veterans Affairs, EEOC
Appeal No. 01986019 (August 26, 1999). In addition, the Commission notes
that the terms of the agreement were not discussed in the agency's contact
with the EEO counselor regarding complainant's knowledge of her rights
under the OWBPA. The record indicates that complainant knew that she
had until August 20, 2007 to rescind the agreement and she failed to
do so in a timely manner. Accordingly, the Commission finds that the
agency's determination of compliance with the August 9, 2007 settlement
agreement was proper. The agency's determination is affirmed for the
reasons set forth 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
March 10, 2008
__________________
Date
2
0120080153
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
4
0120080153