01A20595_r
04-25-2002
Nailah Williams, Complainant, v. Gordon R. England, Secretary, Department of the Navy, Agency.
Nailah Williams v. Department of the Navy
01A20595
April 25, 2002
.
Nailah Williams,
Complainant,
v.
Gordon R. England,
Secretary,
Department of the Navy,
Agency.
Appeal No. 01A20595
Agency No. 99-62204-041
DECISION
Complainant appealed the agency's September 12, 2001 decision, which
concluded that the agency had not breached the settlement agreement
between the parties. On May 16, 2001, the parties resolved complainant's
complaints by entering into a settlement agreement, which provided,
in pertinent part, that complainant would receive the following:
The terms of this Agreement are confidential between the Parties and
shall not be disclosed by either Party to any third party except as
may be required to fulfill the obligations assumed hereunder by either
Party, or to ensure compliance with the terms and conditions hereof by
the other Party. Complainant hereby recognizes that the disclosure of
this Agreement to any Federal Agency or entity by the Agency shall not
constitute a breach of this confidentiality provision so long as the
Federal agency or entity to which this Agreement is disclosed has an
official need to know of the terms and conditions of this Agreement.
In the event that a Party violates the terms of this paragraph by
a disclosure, the non-disclosing Party may declare a breach of this
Agreement by the disclosing Party. In the event that such default is
declared, the non-disclosing Party may invoke the remedies described in
paragraph 6, infra.<1> The terms of this Agreement do not establish any
precedent, nor shall this Agreement be used as a basis by Complainant,
or by any representative orga+nization acting on the behalf of or at the
direction of Complainant, or any other individual, to seek or justify
similar terms in any subsequent settlement of any EEO Complainant or
matter concerning the Agency.
By electronic mail to the agency dated June 7, 2001, complainant alleged
that the agency was in breach of the settlement agreement. Specifically,
complainant alleged that the agency failed to keep the terms of the
settlement agreement confidential.
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).
Complainant argues, in her allegation of breach dated June 7, 2001, that
a co-worker told complainant that the co-worker overheard others talking
of complainant's settlement agreement terms. Further, the co-worker
told complainant that a work leader, Mr. X, personally told the co-worker
specific things about the settlement agreement. Complainant states that
Mr. X later apologized to her for disclosing the information and indicated
that he did not know that the information was private. Complainant, on
appeal, argues that the settlement agreement was again breached on August
16, 2001, by a Base attorney who sent an electronic mail to complainant
regarding her settlement and carbon copied individuals not involved.
The record does not contain any statements from Mr. X or complainant's
co-worker regarding the alleged conversation that Mr. X had with
complainant's co-worker regarding the settlement agreement. Further,
there is no indication in the record as to whether sending information
regarding the settlement agreement to the individuals carbon copied
in the August 16, 2001 electronic mail was necessary to fulfill the
obligations under the settlement agreement or to ensure compliance with
the settlement agreement. Therefore, we find that there is insufficient
evidence to determine whether the agency breached the settlement
agreement. The Commission shall remand the matter so that the agency
may supplement the record with evidence necessary to determine whether
the confidentiality provision of the settlement agreement was breached.
The agency decision finding no breach of the settlement agreement is
VACATED. The matter is REMANDED to the agency for further processing
in accordance with this decision and applicable regulations.
ORDER
The agency, within thirty (30) calendar days of the date this decision
becomes final, shall conduct an investigation to determine whether
the confidentiality provision of the May 16, 2001 settlement agreement
was breached. The agency shall supplement the record with:
An affidavit from Mr. X and the co-worker named by complainant addressing
whether the terms of the settlement agreement were discussed in the
conversation described by complainant. If either person acknowledges
that the terms of the agreement were discussed, then that person should
also address why the discussion occurred.
An affidavit from an appropriate agency official identifying the
positions of the persons who were sent carbon copies of the August 16,
2001 electronic mail message at issue in this breach claim.
An affidavit from an appropriate agency official explaining why sending
a copy of the August 16, 2001 electronic mail message to the persons
listed in the electronic mail message was necessary to fulfill the
obligations in the settlement agreement or to ensure compliance with
the settlement agreement.
Within thirty (30) calendar days of the date this decision becomes final,
the agency shall issue a new decision determining whether it breached
the confidentiality provision of the May 16, 2001 settlement agreement.
A copy of the agency decision must be sent to the Compliance Officer as
referenced herein.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
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)
(1994 & Supp. IV 1999). 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 (M0701)
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
April 25, 2002
__________________
Date
1Paragraph 6 states the following:
�Compliance Procedure. The complainant understands and agrees that any
claimed violation, breach or failure to perform any of the commitments
described in this agreement shall be processed in accordance with the
EEOC regulations at 29 C.F.R. � 1614.504, which are provided as Exhibit
1 to this Settlement Agreement. If, as the result of a compliance
action under section 1614.504, the captioned complaint is reinstated,
the parties will return to the status quo ante.�