0120093502
01-29-2010
Sheri H. Smith, Complainant, v. Kathleen Sebelius, Secretary, Department of Health and Human Services, Agency.
Sheri H. Smith,
Complainant,
v.
Kathleen Sebelius,
Secretary,
Department of Health and Human Services,
Agency.
Appeal No. 0120093502
Agency No. HHS-CMS-0155-2009
DECISION
Complainant filed an appeal with this Commission from a final decision
(FAD) by the agency dated June 16, 2009, finding that it was in compliance
with the terms of the April 15, 2004 settlement agreement into which
the parties entered. 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 the agency
agrees to:
(4) Request that the Complainant and other employees having concerns
regarding noise levels raise their concerns with their supervisor,
when appropriate, rather than individual employees.
Complainant contacted her supervisor immediately regarding an event
with a co-worker (CW) on February 4, 2009. Complainant indicated that
on that day, the CW approached her cubicle screaming at her about
her voice levels while she was on the phone. On February 23, 2009,
complainant contacted the EEO office to file an EEO complaint but then
changed her claim to a breach of the April 15, 2004 settlement agreement.
Specifically, complainant alleged that the agency failed to comply with
the settlement agreement when the CW raised his concern with her noise
level to her directly.
In its June 16, 2009 FAD, the agency concluded that it did not breach
the settlement agreement. The agency noted that as soon as complainant
informed management about the incident, they requested a move for
complainant to another workspace so that she will be away from CW.
The agency was able to move complainant within 2 weeks of the event.
The agency also noted that it provided notice to the employees regarding
noise levels. Further, the agency indicated that the settlement agreement
did not require the agency to guarantee that employees will not raise
noise level issues with employees directly.
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 O 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 complainant failed to establish that the
agency breached the settlement agreement. Complainant has not indicated
that the agency failed to inform the employees that they should raise
noise concerns with management, rather that the CW contacted her directly.
However, the plain language of the agreement does not provide a guarantee
that the employees will not contact individuals directly regarding noise
levels. The CW's action, albeit not in compliance with management's
instructions, was not a violation of the settlement agreement. As such,
we find that complainant has not established that the agency's alleged
actions constituted breach.
CONCLUSION
Therefore, we AFFIRM the agency's final decision finding no violation
of the settlement agreement.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 77960,
Washington, DC 20013. 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 (S0408)
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 (Z1008)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with the Court 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
January 29, 2010
__________________
Date
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0120093502
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120093502