01a01718
07-13-2000
Janice C. Hall, Complainant, v. Richard J. Danzig, Secretary, Department of the Navy, Agency.
Janice C. Hall, )
Complainant, )
)
v. ) Appeal No. 01A01718
Richard J. Danzig, )
Secretary, )
Department of the Navy, )
Agency. )
____________________________________)
DECISION
On December 22, 1999, complainant filed a timely appeal with this
Commission from a final decision by the agency (FAD) dated December 3,
1999, finding that it was in compliance with the terms of the December
8, 1998 settlement agreement into which the parties entered.<1> See 64
Fed. Reg. 37,644, 37,659, 37,660 (1999)(to be codified and hereinafter
referred to as EEOC Regulation 29 C.F.R. � 1614.402); 29 C.F.R. �
1614.504(b); and 64 Fed. Reg. 37,644, 37,659 (1999)(to be codified at
29 C.F.R. � 1614.405).
The settlement agreement provided, in pertinent part, that:
. . .
(3) [The agency] agrees to promote [complainant] to the GS-0525-07,
Accounting Technician effective 22 November 1998; and
. . .
[Complainant] and [the agency] agree that they will keep the terms and
fact of this settlement agreement completely confidential, except to the
extent disclosure may be required by law, regulation, or court order.
By letter to the agency dated November 8, 1999, complainant alleged that
the agency was in breach of the confidentiality provision contained
in the settlement agreement, and requested that the agency remove her
supervisor (S1) and require S1 to provide a written letter of apology.
Specifically, complainant alleged that S1 breached Section 7 of the
settlement agreement by telling co-workers the circumstances leading
up to and contained in the December 8, 1998 settlement agreement.
Complainant stated that on October 12, 1999, she learned that in
January or February 1999, her supervisor told Person A, Person B,
and Person C that complainant had a nervous breakdown, was a racist,
and that complainant filed an EEO complaint to show that she was better
qualified for promotion to a lead accounting position.
In its December 3, 1999 FAD, the agency concluded that the confidentiality
provision had not been breached. The agency stated that it conducted
an investigation in response to complainant's breach allegation and
as a result of the investigation concluded that there was insufficient
evidence to support complainant's allegation that the confidentiality
provision had been breached.
On appeal, complainant reiterates her argument that her supervisor's
statements in January or February 1999, constituted a breach of the
confidentiality provision of the settlement agreement. In addition,
complainant includes a copy of a January 18, 2000 letter signed by Person
A, the person who informed complainant about her supervisor's statements
constituting the alleged breach. In her letter, Person A stated that
S1 told her that complainant filed a formal complaint in response to
complainant's non-selection for a promotion to the Lead Accounting
Technician position. Person A also stated that �the factors related to
the situation between S1 and complainant were common knowledge within
the department and were often discussed among nearly all the employees.�
EEOC Regulation 64 Fed. Reg. 37,644, 37,660 (1999)(to be codified and
hereinafter referred to as 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 present case, we find that complainant provided sufficient
evidence to show that the settlement agreement was breached. The agency
investigation contained in the record, indicates that S1 told Person A
that complainant had a nervous breakdown due to an overtime/compensatory
time situation and also based on the fact that complainant had not been
selected for the Lead Accounting position. In the statement submitted
on appeal, Person A states that S1 told her that complainant filed a
formal complaint against S1 because of an overtime/compensatory time
issue and because complainant was not selected for the Lead Accounting
Technician position. The settlement agreement provides that the agency
will keep the terms and fact of this settlement agreement completely
confidential, except to the extent required by law. Upon review of the
record, we find that complainant's evidence shows that S1 disclosed the
fact that complaint filed an EEO complaint and the events leading up to
the settlement agreement, which breached the confidentiality provision
contained in the agreement. Furthermore, there is no evidence to indicate
that S1's disclosure was required by law or in an effort to carry out
the terms of the agreement. Having found a breach of the settlement,
we find that in view of the execution of the other provisions of the
agreement, including complainant's promotion to the GS-0525-07 position,
equitable considerations require that the remedial relief include specific
enforcement of the agreement, rather than reinstatement of complainant's
complaint.
Accordingly, the agency's decision finding no breach was improper and
is REVERSED.
ORDER
The agency is hereby ORDERED in accordance with 64 Fed. Reg. 37,644,
37,660 (1999)(to be codified and hereinafter referred to as 29 C.F.R. �
1614.504(c)), to specifically implement the December 8, 1998 settlement
agreement, in particular provision seven, insuring that the agency keep
the terms and fact of the settlement agreement completely confidential,
except to the extent disclosure may be required by law.
A copy of documentation indicating that the agency is specifically
enforcing the agreement must be sent to the Compliance Officer as
referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K1199)
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 64
Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter
referred to as 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 64 Fed. Reg. 37,644, 37,659 (1999)
(to be codified and hereinafter referred to as 29 C.F.R. � 1614.409).
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (R0400)
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:
July 13, 2000
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_______________ __________________________
Date 1On November 9, 1999, revised regulations governing the EEOC's
federal sector complaint process went into effect. These regulations
apply to all federal sector EEO complaints pending at any stage in
the administrative process. Consequently, the Commission will apply
the revised regulations found at 64 Fed. Reg. 37,644 (1999), where
applicable, in deciding the present appeal. The regulations, as amended,
may also be found at the Commission's website at www.eeoc.gov.