01A23878_r
12-09-2002
Renee Noe, Complainant, v. Gale A. Norton, Secretary, Department of the Interior, Agency.
Renee Noe v. Department of the Interior
01A23878
December 9, 2002
.
Renee Noe,
Complainant,
v.
Gale A. Norton,
Secretary,
Department of the Interior,
Agency.
Appeal No. 01A23878
Agency No. FWS-97-026R7
DECISION
Complainant filed a timely appeal with this Commission from a final
decision (FAD) by the agency dated June 10, 2002, finding that it was in
compliance with the terms of a November 1, 1991 settlement agreement.
See 29 C.F.R. � 1614.402; 29 C.F.R. � 1614.504(b); and 29 C.F.R. �
1614.405.
The settlement agreement provided, in pertinent part, that complainant's
rights as an employee were protected, which included a work environment
free from discrimination, intimidation, ridicule, humiliation, and similar
indignities from supervisors and employees; and that complainant would
be transferred to the agency's Ranger Division effective November 1,
1991 (provision 1); and that there would be no reprisal actions taken
against complainant (provision 2).<1>
By letter to the agency dated April 25, 2002, complainant alleged that the
agency breached the settlement agreement, and requested that the agency
implement its terms. Complainant first noted that after the agreement
was executed, and until October 1998, the agency complied with the terms
of the settlement agreement. Complainant alleges, however, that since
complainant's current Supervisor assumed duties in October 1998, she
was subjected to a continuing pattern of harassment and reprisal which
escalated in 2000. Complainant identified various alleged incidents in
support of her breach allegation.
In its June 10, 2002 FAD, the agency found no breach of the November 1991
settlement agreement. The agency found that the alleged harassment of
complainant by her current Supervisor was not covered by the terms of
the settlement agreement, which was 10 years old. The agency considered
the present alleged harassment to be a new issue and that the matters
raised in her breach claim should be brought to the attention of an
EEO Counselor.<2>
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).
The Commission has held that allegations of further discrimination and
harassment should be precessed as a new, separate complaint, rather than
as a breach allegation. See Bindal v. Department of Veterans Affairs,
EEOC Request No. 05900225 (August 9, 1990). Therefore, the claims
of further harassment and discrimination should be raised as a new,
separate EEO claim, if complainant has not already done so.
Accordingly, the agency's determination that it did not breach the
settlement agreement of November 1, 1991, is hereby AFFIRMED.
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 (S0900)
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. 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. If you
file a request to reconsider and also file a civil action, 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
December 9, 2002
__________________
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
______________________________
1The settlement agreement contained various other provisions, i.e.,
agency management would accept a level four performance appraisal given
by complainant's supervisor; a Facility Manager would provide a written
apology for his actions; payment of attorney's fees; and restoration
of 31 days of annual leave. Those provisions are not at issue in the
instant appeal.
2In its final decision, the agency noted that complainant contacted an
EEO Counselor regarding these matters and that she �is pursuing this
claim in the appropriate forum.�