01990865
09-24-1999
Denise Lavell, Appellant, v. Richard J. Danzig, Secretary, Department of the Navy, Agency.
Denise Lavell v. Department of the Navy
01990865
September 24, 1999
Denise Lavell, )
Appellant, )
)
v. ) Appeal No. 01990865
) Agency No. 94-48902-001
Richard J. Danzig, )
Secretary, )
Department of the Navy, )
Agency. )
)
DECISION
INTRODUCTION
On November 3, 1998, appellant filed a timely appeal with this Commission
from a final decision (FAD) by the agency dated October 1, 1998,
finding that it was in compliance with the terms of the September 18,
1996 settlement agreement (SA) into which the parties entered. See 29
C.F.R. ��1614.402, .504(b); EEOC Order No. 960, as amended.
ISSUE PRESENTED
The issue presented is whether the agency properly determined that it did
not breach the settlement agreement entered into on September 18, 1996.
The settlement agreement (SA) provided that:
(1) the agency extend the term of appellant's employment as an instructor
with the agency in the San Diego area for two additional years with that
term expiring in November 1998;
(2) the agency adjust appellant's base salary from its level as of the
agreement to that of a GS-14, Step 10 which appellant will continue to
be paid until the termination of her employment in November 1998;
(3) the agency will pay appellant the sum of $60,000.00 in lieu of any
back pay, front pay, recruitment or retention bonuses to which appellant
asserted she was entitled;
(4) the agency acknowledges its obligation not to take reprisals against
appellant for filing a discrimination complaint;
(5) appellant withdraws her complaint of discrimination and violation
of the Equal Pay Act against the agency; and
(6) appellant acknowledges that she was not filed any other complaints
with respect to employment matters occurring prior to the date of the
SA.
In a letter to the agency dated September 2, 1998, appellant alleged
that the agency was in breach of the SA and requested that the agency
specifically implement its terms. Appellant alleged that the agency
failed to allow her to carry out the duties for which she was hired,
specifically to act as a Senior Leadership Seminar Instructor, during
August 1998. Appellant had been scheduled to teach an SLS class for two
weeks starting on August 7, 1998, in Iwakuni, Japan. She was denied her
request and did not receive orders that were necessary to allow appellant
to travel to Japan to teach the class. Appellant also alleges that the
agency has denied two other requests to teach SLS classes in September
and October 1998. Appellant alleges that her job description requires
designing, developing, and teaching the Senior Leaders Seminar (SLS).
Since her job description has not changed, she argues that her ability
to continue to teach the SLS class as part of maintaining her "Lead
Instructor" status should continue as part of the SA's provision that
extended the term of her employment.
In its October 1, 1998 FAD, the agency concluded that it has fully
complied with the terms of the settlement agreement and that the
allegations raised by appellant do not constitute breach of the
agreement terms. The agency found that the portion of the agreement on
which appellant relied was fulfilled by the agency. Appellant's term
appointment had been extended to November 1, 1998. The agency found that
there had been no action taken to change appellant's employment with the
agency and appellant's term ended on November 1, 1998. It also noted
that SLS and other Total Quality Leadership Courses had been phased out
by the agency and incorporated into all of its leadership courses during
the second quarter of 1998. The agency also found that had it not been
for the settlement agreement, appellant would have had her appointment
terminated in January 1998. Finally, the agency found that there was
nothing in the settlement agreement, nor in her position description
to suggest that she was entitled to any benefit of certification as a
lead instructor. This appeal followed.
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.
That section further provides that if the complainant believes that the
agency has failed to comply with the terms of a settlement agreement,
the complainant shall notify the Director of Equal Employment Opportunity
of the alleged noncompliance with the settlement agreement within 30
days of when the complainant knew or should have known of the alleged
noncompliance. 29 C.F.R. �1614.504(a). The complainant may request
that the terms of the settlement agreement be specifically implemented
or request that the complaint be reinstated for further processing from
the point processing ceased.
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 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 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 the agency fully complied with the
SA with respect to appellant's term of employment. The SA directed the
agency to extend the term of appellant's employment as an instructor with
the agency. The plain meaning of the SA does not address the duties
to be performed by appellant, nor does it specify that appellant must
be certified as "Lead Instructor." Since such language did not appear
in the SA, and the agency fully complied with the plain language of the
SA because it extended appellant's term of employment as an instructor
with the agency until her term expired, the Commission finds that the
agency did not breach the SA.
Furthermore, although the issue is presently not before us, the Commission
notes that appellant, through her representative, contacted the Commission
by letter dated November 29, 1998. In it, appellant further alleges that
the agency committed other acts in breach of the SA. Appellant alleges
that the agency did so in the following manner:
1) The agency has made the terms of the SA known to non-parties in
violation of the Confidentiality Agreement;
2) The agency has kept multiple files on appellant which include the
terms of the SA which has been made known to non parties.
3) The agency has retaliated against appellant because of the SA; and
4) The agency has retaliated against appellant by falsely slandering
appellant's professional reputation with potential employers.
With regard to new allegations (3) and (4), appellant should contact an
EEO Counselor if she wishes to pursue these claims as new compliants
within fifteen days of receipt of this decision. As to the new
allegations (1) and (2), there is insufficient information for the
Commission to render a decision on the allegations of further breach
of the SA by the agency. The Commission advises appellant to contact
the agency regarding these new allegations of further breach per the
Noncompliance Procedure, as proscribed in the SA.<1>
CONCLUSION
Accordingly, the agency's decision finding no breach of the SA is AFFIRMED
for the reasons set forth herein.
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 (S0993)
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. 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:
Sept. 24, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
1 If appellant notifies the agency of these allegations of breach, the
date of the notification will be December 2, 1998, the date on which
the Commission received appellant's letter regarding appellant's further
allegations of breach of the SA.