01975750_r
06-24-1999
Karen A. Jordy, Appellant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.
Karen A. Jordy, )
Appellant, )
)
v. ) Appeal No. 01975750
) Agency No. 96-0865
Togo D. West, Jr., )
Secretary, )
Department of Veterans )
Affairs, )
Agency. )
______________________________)
DECISION
On July 14, 1997, appellant filed a timely appeal with this Commission
from a final decision (FAD) by the agency dated June 19, 1997,
finding that it was in compliance with the terms of the January 12,
1996 settlement agreement into which the parties entered. See 29
C.F.R. ��1614.402, .504(b); EEOC Order No. 960, as amended.
The settlement agreement provided, in pertinent part, that in exchange
for the withdrawal of appellant's EEO complaint, the agency agreed to:
(2.a) provide [appellant] with a fair and equitable work environment,
free from any discrimination related to harassment and/or reprisal by
[her] immediate supervisor, [], Chief, Police & Security Service.
By letter to the agency dated May 9, 1997, appellant alleged that the
agency was in breach of the settlement agreement, and requested that
the agency reinstate her complaint from the point processing ceased.
Specifically, appellant alleged that her supervisor subjected her to other
incidents of alleged harassment, including: (1) using filthy language
around her; (2) failing to inform her of his comings and goings; and
(3) failing to upgrade appellant's position description to a GS-5 level.
In its June 19, 1997 FAD, the agency concluded that it was in compliance
with the settlement agreement. Specifically, the agency determined
that the incidents about which appellant complained, rather than being
specifically addressed by the settlement agreement, were new allegations
of discrimination for which she should have initiated EEO counseling
and pursued her rights under 29 C.F.R. �1614.
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).
EEOC Regulation 29 C.F.R. �1614.504 provides that if a complainant
believes that the agency has failed to comply with the terms of a
settlement agreement, she may request that the terms of the agreement
be specifically implemented, or, alternatively, that the complaint be
reinstated for further processing. However, the Commission has held
that a complaint which alleges reprisal or further discrimination in
violation of a settlement agreement's "no reprisal" clause, is to be
processed as separate complaints and not as a breach of settlement.
Bindal v. Department of Veterans Affairs, EEOC Request No. 05900225
(August 9, 1990); 29 C.F.R. �1614.504(c). In the instant case, we
find that provision (2.a) of the settlement agreement amounts to a �no
reprisal� clause. Consequently, appellant is advised that she must
initiate counseling to pursue her EEO rights.<1>
Accordingly, the agency's final decision finding that it was not in breach
of the settlement agreement 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. 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 (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:
June 24, 1999
____________________________
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations1The Commission notes that on appeal,
appellant asserts that she was informed by an EEO Counselor that
her allegations of reprisal were to be raised as allegations
of breach of settlement. Appellant's assertions are bolstered
by the fact that in her letter alleging breach, she referred
a conversation she had with an EEO Counselor on May 1, 1997.
Absent evidence to the contrary, therefore, if appellant elects to
pursue these allegations of reprisal, the agency is to use May 1,
1997, as the date of initial contact.