Complainant,v.Penny Pritzker, Secretary, Department of Commerce (National Oceanic & Atmospheric Administration),1 Agency.

Equal Employment Opportunity Commission

Sep 20, 2013

0120091024 (E.E.O.C. Sep. 20, 2013)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Complainant,

v.

Penny Pritzker,
Secretary,
Department of Commerce
(National Oceanic & Atmospheric Administration),1
Agency.

Appeal No. 0120091024

Hearing No. 531-2007-00063X

Agency Nos. 05-54-00238, 07-54-00184

DECISION

Upon review, the Commission finds that the Agency properly determined that it did not breach
a settlement agreement that the parties entered into resolving Complainant’s complaints. See
29 C.F.R. § 1614.504. For the following reasons, we AFFIRM the Agency’s determination
not to reinstate Complainant’s complaints.2

BACKGROUND

On July 6, 2007, the parties entered into a settlement agreement resolving the complaints. The
settlement agreement provided in part that:

2.c. Complainant agrees to irrevocably resign from her position.

3.a. The Agency agrees to remit a lump sum amount of $75,000 to Complainant.

1. 6. Non-disclosure. The parties agree to keep the nature and terms of this
Agreement confidential. The terms of the Agreement may not be disclosed to any

1 This appeal was initially incorrectly docketed as involving the Department of Labor.
2 The Agency argues that Complainant’s appeal filed on January 5, 2009, was untimely.
Because the record contains no evidence showing when Complainant received the final
determination dated October 4, 2007, we will consider the appeal timely.
0120091024

2
person or entity beyond the persons signing below, except to Complainant's spouse as
applicable, as required by law, as necessary to implement the terms of the Agreement,
or as ordered by a court or administrative body of competent jurisdiction. Neither the
terms of this Agreement, nor the existence of this Agreement, nor a copy of this
Agreement shall be disclosed to Complainant's former representative or any of his
agents or employees, except as permitted by Complainant and/or by an order of a court
or administrative body of competent jurisdiction.

On August 23, 2007, Complainant claimed that the Agency failed to comply with item 6 of the
settlement agreement. Specifically, Complainant indicated that she received a call from a
former employee (FE) on August 23, 2007, who advised Complainant that FE was told by
Employee A from Employee B that Complainant had resigned and was paid $75,000.
Complainant also indicated that the Agency also put this confidential information in the
biweekly labor report which was retrieved from Data Warehouse, which Employee B used on
a daily basis to run various reports for the budget staff. Complainant acknowledged that she
received $75,000 and resigned in accordance with the settlement agreement.

In response, the Agency issued its final determination on October 4, 2007, stating that it did
not breach the terms of the settlement agreement. Specifically, it indicated that it investigated
the alleged claim and based on its EEO Officer’s inquiry, both Employees A and B denied
having any knowledge of the specifics of the settlement agreement or discussing the agreement
with another person, i.e., FE.

Complainant appeals alleging the Agency breached item 6, i.e., non-disclosure provision, of
the settlement agreement. She contends that her complaints should be reinstated for further
processing.

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. 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. Dep’t of Def., 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. Dep’t 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. U.S. Postal Serv., 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).

0120091024

3
In response to Complainant’s claim, the Agency stated that it did not breach the settlement
agreement at issue. Specifically, the Agency indicated that it did not disclose the nature or
terms of the settlement agreement in accordance with item 6 thereof. The Agency stated that
after its receipt of Complainant’s alleged breach, it questioned both Employees A and B,
identified by her, regarding the alleged claim, but they both denied having any knowledge of
the specific terms of the settlement agreement. Furthermore, the Agency noted that neither
Employee A nor Employee B was a signatory to the settlement agreement. Complainant also
claimed that the Agency put the terms of the settlement agreement in the biweekly labor report.
However, other than her mere assertions, she provided no evidence to support her claim of
breach and the Agency denied the breach. Based on the foregoing, we find that Complainant
failed to show that the Agency breached the terms of the settlement agreement.

CONCLUSION

Accordingly, the Agency’s decision finding no settlement breach is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION

(M0610)
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), at 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 77960, Washington, DC 20013. 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).
0120091024

4

COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION

(S0610)
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

(Z0610)
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 from the Court that the Court appoint an attorney to represent you
and that the Court also 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
with the Court 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

September 20, 2013
Date