Denise Harris, Complainant,v.Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionJun 29, 2001
01A12801_r (E.E.O.C. Jun. 29, 2001)

01A12801_r

06-29-2001

Denise Harris, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.


Denise Harris v. Department of Veterans Affairs

01A12801

June 29, 2001

.

Denise Harris,

Complainant,

v.

Anthony J. Principi,

Secretary,

Department of Veterans Affairs,

Agency.

Appeal No. 01A12801

Agency No. 99-2255

DECISION

Complainant filed a timely appeal with this Commission from a final

agency decision dated February 7, 2001, finding that it was in compliance

with the terms of the June 19, 2000 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:

(6) Both complainant and her immediate supervisor will enter into the

ADR-Mediation process made available by the Network at the earliest

possible date;

(7) This mediation will address such issues as trust, sensitivity,

communications, etc.

By letter to the agency dated July 25, 2000, complainant alleged that

the agency breached the settlement agreement, and requested that the

agency reinstate her underlying complaint. Specifically, complainant

alleged that the agency breached the agreement when:

Complainant's former immediate supervisor and her supervisor arrived

late for the ADR meeting;

Complainant's former immediate supervisor was accompanied by her

supervisor at the ADR meeting;

The agency replaced complainant's immediate supervisor after entering

into the agreement with another person in an effort to obstruct the

mediation efforts;

The former immediate supervisor continued to make sarcastic and harassing

remarks to complainant; and

The issues of trust, sensitivity, communication, were not addressed

during the mediation sessions.

In its February 7, 2001 decision, the agency concluded that it did not

breach the agreement. Specifically, the agency found that the terms

of the agreement do not prevent the presence of additional parties at

mediation meetings nor does it address the matter of tardiness. Further,

the agency concluded that although it replaced complainant's immediate

supervisor with another individual during the mediation negotiations,

the spirit and objectives of the agreement were best served by continuing

the mediation with the former immediate supervisor. Further, the agency

found that the issues of trust, sensitivity, and communication did not

have to be separately addressed or resolved through mediation. Instead,

the agency viewed those topics as a general outline of possible matters

that might facilitate resolution of the conflict.

The record reflects that three ADR meetings were held the parties on July

18, 2000, August 14, 2000, and August 24, 2000. The participants in all

three meetings consisted of complainant, complainant's representative,

complainant's former immediate supervisor, the former immediate

supervisor's supervisor, and two mediators.

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).

Upon review, the Commission finds that the agency complied with the terms

of the settlement agreement. Regarding allegation (a), we find that the

matter of tardiness is not covered by the agreement. The agreement only

specifies that the parties will enter into mediation as soon as possible,

but is silent as to the time that the meetings will occur. Consequently,

we find no breach of its provision by this conduct. Regarding claim

(b), the Commission finds no breach of the agreement by this action.

While the agreement provides for the presence of the complainant and her

immediate supervisor, it does not exclude the presence of others at the

mediation proceedings. Further, the record documents that complainant

likewise was accompanied by an individual not identified the agreement.

With respect to claim (c), the Commission determines that continuing

mediation with the former immediate supervisor after her reassignment

constitutes a good faith effort by the agency to comply with the

settlement agreement's goals of using mediation to improve interpersonal

relations between complainant and her former supervisor, rendering the

agency in compliance with provisions 6 and 7.

Regarding claim (d), we find that this matter does not constitute a breach

of the settlement agreement. It appears that complainant is alleging

reprisal by the agency, which is beyond the scope of the settlement

agreement. Upon review, the Commission finds that these matters should

be processed as a separate complaint under 29 C.F.R. � 1614.106 rather

than as a claim of noncompliance with a settlement agreement. See 29

C.F.R. �� 1614.101(b) and 1614.105(a). If complainant has not already

done so, he must contact an EEO Counselor pursuant to � 1614.105 if

she wishes to pursue claims of discrimination on this matter.

With respect to claim (e), we likewise find that the agency complied

with the terms of the agreement. Provision 2's mandate that mediation

would address matters such as trust, sensitivity, and communication does

not constitute a literal checklist or agenda for the meetings, rather

it serves as overall guidance on facilitating a long-term resolution

to the conflict between the parties. Consequently, we find that the

agency complied with provision 7.

Accordingly, the agency's finding of no breach of the settlement

agreement is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0900)

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 29, 2001

__________________

Date