01A04663
03-13-2001
Emily Florio, Complainant, v. Tommy G. Thompson, Secretary, Department of Health and Human Services, Agency.
Emily Florio v. U.S. Department of Health and Human Services
01A04663
March 13, 2001
.
Emily Florio,
Complainant,
v.
Tommy G. Thompson,
Secretary,
Department of Health and Human Services,
Agency.
Appeal No. 01A04663
Agency Nos. FDA-D-006-98
FDA-D-015-98
FDA-D-053-98
Hearing Nos. 120-98-6125X
120-98-6126X
120-98-6575X
DECISION
On June 22, 2000, complainant filed an appeal with this Commission based
on the agency's failure to timely respond to her May 12, 2000 letter
alleging breach of the October 13, 1999 settlement agreement into which
the parties entered. See 29 C.F.R. � 1614.402; 29 C.F.R. � 1614.504(b).
The Commission accepts the appeal in accordance with 29 C.F.R. � 1614.405.
Review of the record reflects that the parties entered the settlement
agreement at issue during a hearing before an EEOC Administrative Judge
(AJ) concerning the captioned complaints. The terms of the agreement
are memorialized in a certified hearing transcript dated October 13, 1999.
A fair reading of this transcript indicates that the parties agreed
that the agency would place complainant in a suitable detail to another
position, while simultaneously providing the services of a settlement
officer to expedite her placement into a suitable permanent position.
However, the transcript shows that the AJ explicitly recognized that both
parties also agreed that the complaint could be reinstated at the point
where processing had ceased in the hearing procedure if complainant had
not been placed in a suitable position within six months of the date
of the agreement. The settlement agreement also reflected additional
terms, including restoration of leave, purging adverse information from
complainant's records, and confidentiality.
By Order dated the same day as the certified transcript, the AJ dismissed
the captioned complaints based on his stated intention to do so in the
hearing transcript.
By letter to the agency dated May 12, 2000, complainant alleged that the
agency breached the settlement agreement. Primarily, complainant contends
that the agency failed to make a good faith effort to find her a suitable
position, and never placed her into a detail position. Complainant
also alleges that the agency breached the settlement agreement by not
allowing her to purge records from all of her files, not just her official
personnel file, and asserts that the confidentiality provisions were
violated as a means of defeating her placement into a permanent position.
In its September 8, 2000 response to both complainant's appeal and
the above letter alleging breach, the agency concluded that it had not
breached the settlement agreement as alleged by complainant. In pertinent
part, the agency averred that it acted diligently and in good faith in
trying to obtain a position for complainant. The agency nevertheless
conceded that the complaint should be reinstated at the point where the
hearing ceased, referring to the provision of the settlement agreement
giving complainant this option if she did not have a suitable permanent
position within the applicable six-month period.
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).
In the instant case, review of the hearing transcript memorializing the
terms of the settlement agreement at issue confirms that the parties
agreed that complainant could reinstate her complaint if she did not
obtain a permanent position in six months. At p. 12 of this transcript,
the AJ stated:
As a final element of the agreement, I guess would be that [complainant]
agrees to withdraw without prejudice her complaint at this time, subject
to reinstatement only as provided for in this agreement or, of course,
as provided by the Commission's regulation, if there's a breach of
the agreement.
Moreover, we find that complainant's May 12, 2000 letter requests that
�reparations� be made soon or that the complaint be reinstated; and,
that the agency's September 8, 2000 response concedes that reinstatement
is appropriate under the terms of the settlement agreement.
Accordingly, the captioned complaints are REMANDED for a hearing in
accordance with the ORDER below. <1>
ORDER
The agency within fifteen (15) calendar days of the date this decision
becomes final shall request that the EEOC's Baltimore District Office
schedule a hearing in an expeditious manner. The agency is directed
to also submit a copy of the complaint files to the Hearings Unit of
the Baltimore District Office within fifteen (15) calendar days of
the date this decision becomes final. The agency shall provide written
notification to the Compliance Officer at the address set forth below that
the request and complaint files have been transmitted to the Hearings
Unit. Thereafter, the Administrative Judge shall issue a decision on
the complaint in accordance with 29 C.F.R. � 1614.109 et seq., and the
agency shall issue a final action in accordance with 29 C.F.R. � 1614.110.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0900)
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 complainant. If the agency does not comply with the Commission's
order, the complainant may petition the Commission for enforcement of
the order. 29 C.F.R. � 1614.503(a). The complainant 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. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g). Alternatively,
the complainant 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. �� 1614.407 and 1614.408. 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
complainant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. � 1614.409.
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 (R0900)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court within ninety (90) calendar days from the date
that you receive this decision. 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 filed your appeal with the
Commission. 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. 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 13, 2001
__________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
__________________
Date
______________________________
1In light of our disposition of this appeal, we do not find it necessary
to address the issue of whether the agency breached additional terms of
the settlement agreement as alleged by complainant.