01984493
06-28-1999
Mildred M. Breen, Appellant, v. Donna E. Shalala, Secretary, Department of Health and Human Services, Agency.
Mildred M. Breen v. Department of Health and Human Services
01984493
June 28, 1999
Mildred M. Breen, )
Appellant, )
)
v. ) Appeal No. 01984493
) Agency Nos. IHS-742-94
Donna E. Shalala, ) IHS-061-96
Secretary, )
Department of Health and )
Human Services, )
Agency. )
______________________________)
DECISION
On May 27, 1998, appellant filed a timely appeal with this Commission
from a final decision (FAD) by the agency dated April 23, 1998, finding
that it would not order specific implementation of the terms of the
October 4, 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:
The Agency will write a letter to [appellant] assuring her of her right
to be free from unlawful discrimination and assurance that age, gender
and reprisal discrimination will not be tolerated.
The Agency will remove the Budget Analyst from [appellant's] direct
line of supervision.
The service unit director (S1) at [appellant's work location] will direct
all supervisees (sic) of [appellant] through the appropriate chain of
command, particularly for approval of training, travel, promotions and
other requests normally approved by [appellant], so that [appellant]
will be accorded deference and involvement in decisions to which she
should be a party.
(9) [S1] will consult guidelines set forth by the Management Resources
Committee, the Space Utilization Committee and the ADP Committee and
consult such committees for input on space management, travel and training
for individuals and ADP equipment purchases. This is not to be construed
as a relinquishment of any authority delegated to [S1].
(10) In his absence, [S1] will designate a person as acting service unit
director from a list of individuals compiled by [S1]. Designations will
be on a rotating basis with the person having served in that capacity most
recently dropping to the bottom of the list. Any disciplinary action
contemplated by any acting service unit director against [appellant]
will be deferred until [S1] returns or has been consulted with and has
agreed to such action.
(11) [S1] and [appellant] will jointly participate in meetings in
the presence of an outside, objective mediator to identify issues
creating friction between [S1] and [appellant] and work toward open
communication and resolution of management. [S1] and [appellant]
will mutually agree on a suitable mediator and agree to the frequency,
duration and scheduling of these meetings. These meetings will be
discontinued upon the mutual agreement of [S1] and [appellant].
(12) Provisions of this agreement numbered paragraph 7 through paragraph
12, unless otherwise stated, shall continue and remain in effect until
such time as [appellant] is no longer under the direct supervision of
[S1].
By letter to the agency dated March 17, 1998, appellant alleged
that the agency breached provisions (3), (8), (9), (10), and (11) of
the settlement agreement, and requested that the agency specifically
implement the terms. With regard to provision (3), appellant acknowledged
that she received a letter dated November 26, 1996, from the agency's
EEO-CR Manager containing the required language in the agreement, but
alleged that S1 continued to retaliate and discriminate against her.
Appellant also alleged that on March 5, 1998, S1 did not consult with
the Space Committee for lodging and meals for two VACWT worker/patients,
in violation of provision (9) of the agreement.
In its April 23, 1998 FAD, the agency concluded that it was in substantial
compliance with the settlement agreement. The agency responded to
appellant's allegations by identifying the provision alleged to have
been breached, and indicating why it determined that no breach occurred.
In response to appellant's allegation that the agency breached provision
(9) of the agreement, the agency acknowledged that it was in technical
breach, but asserted that circumstances arose which required an immediate
decision by S1. As a result of these circumstances, S1 was unable
to consult with the Space Utilization Committee. The agency's final
decision did not address appellant's allegation that the agency failed
to comply with provision (11) of the settlement agreement.
In her submissions on appeal, appellant provided evidence showing that,
contrary to the agency's assertion in its final decision, there were no
time constraints with regard to the decision to provide lodging and meals
for two VACWT worker/patients. Specifically, appellant provided a copy of
an e-mail message showing that S1 made the decision to "move forward" with
the program which provided the VACWT worker/patients lodging and meals,
without first consulting the Space Utilization Committee. Additionally,
appellant indicated that S1 was to retire on May 2, 1998.
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, we find that the agency's decision not to
specifically implement the terms of the settlement agreement was proper.
We reach this conclusion notwithstanding that the agency failed to comply
with provision (9) of the agreement.
Provision (9) required S1 to consult with the Space Utilization
Committee for input on space management, travel, etc. S1's e-mail
message indicating that he was "mov[ing] forward" with his plan to
provide services to VACWT workers/patients, shows that he contemplated
this plan prior to its implementation on March 5, 1998. As the agency
provided no evidence showing that the Space Utilization Committee was
consulted prior to the implementation of this program, we find that the
agency was in breach of that provision.
However, provision (12) of the settlement agreement provided that the
terms of provisions (7) through (12) would remain in effect only as
long as appellant was under the supervision of S1. In that regard,
appellant acknowledged that S1 had a retirement date of May 2, 1998,
and thereafter appellant would no longer be under S1's supervision.
By the agreement's own terms, therefore, provisions (7) through (12)
were no longer binding after May 2, 1998. Accordingly, the Commission
is unable to order the agency to specifically implement those provisions
of the agreement.
Of the provisions in the agreement with no specified expiration,
appellant alleged only that the agency was in breach of provision (3).
However, appellant acknowledged that on November 26, 1996, she received
a letter from the agency assuring her of her right to be free from
unlawful discrimination. Consequently, we find that the agency was
in compliance. Appellant alleged that she was subjected to additional
discrimination and reprisal subsequent to the agreement. 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). Appellant is
advised, therefore, to seek counseling on those issues if she intends
to pursue her EEO rights.
Accordingly, the agency's final decision refusing to specifically
implement the terms of the October 4, 1996 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 28, 1999
____________________________
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations