01990897_r
12-09-1999
Stephanie B. Lamb, Complainant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.
Stephanie B. Lamb, )
Complainant, )
)
v. ) Appeal No. 01990897
) Agency No. 97-1947
Togo D. West, Jr., )
Secretary, )
Department of Veterans )
Affairs, )
Agency. )
____________________________________)
DECISION
On November 12, 1998, complainant filed an appeal with this Commission
from a final decision by the agency (FAD) dated October 19, 1998, finding
that it had not breached the terms of the October 21, 1997 settlement
agreement into which the parties entered.<1> See 64 Fed. Reg. 37,644,
37,659, 37,660 (1999)(to be codified and hereinafter referred to as EEOC
Regulations 29 C.F.R. ��1614.402, .504(b)). Accordingly, the appeal is
timely, and is accepted in accordance with EEOC Order No. 960, as amended.
The settlement agreement provided, in pertinent part, that:
(2) The [agency] agrees to:
in the future, include the complainant in meetings held by the Chief
of Acute Care relating to issues of the service and outpatient clinics;
ensure that the inappropriate conduct by the supervisor towards
complainant will cease immediately, and the supervisor is counseled
regarding the policies, regulations, and requirements of all matters
pertaining to the prevention of harassment in the workplace; [and]
provide the complainant with a fair and equitable work environment
free from harassment or any other discrimination based on race, color,
religion, sex, national origin, age, disability, or reprisal for filing
this complaint[.]
By letter to the agency dated August 28, 1998, complainant, through
her attorney, alleged that the agency was in breach of the settlement
agreement. Specifically, complainant alleged that an agency official
did not want complainant to attend a �Wound Care Conference� because
she was �trying to become pregnant.� Complainant concedes, however,
that she attended the conference despite the official's efforts.
Complainant alleges that the official's attempt to bar her from the
conference violates provision (2)(c) of the settlement agreement.
In its October 19, 1998 FAD, the agency concluded that complainant raised
a new allegation of discrimination. The agency found that it had not
breached the agreement, and instructed complainant to contact an EEO
Counselor to file a separate complaint regarding her claims.
Volume 64 Fed. Reg. 37,644, 37,656 (1999)(to be codified and hereinafter
referred to as 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 (Dec. 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
(Aug. 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 (Dec. 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).
Claims that subsequent acts of discrimination violate a settlement
agreement must be processed as a separate complaint, not as a potential
breach of the agreement. See 29 C.F.R. �1614.504(c). 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 a separate complaint and not as a breach of settlement.
Bindal v. Department of Veterans Affairs, EEOC Request No. 05900225
(Aug. 9, 1990).
In the instant case, complainant does not contend that she was not
allowed to attend a meeting held by the Chief of Acute Care. To the
contrary, complainant acknowledges that she attended the conference.
Further, the Commission finds that provision (2)(c) of the settlement
agreement is a �no reprisal� clause -- it provides complainant no benefit
to which she was not explicitly entitled under applicable EEO laws.
See Henry v. United States Postal Service, EEOC Request No. 05940897
(May 18, 1995) (quoting Bindal v. Department of Veterans Affairs,
EEOC Request No. 05900225 (Aug. 9, 1990)); see generally, Title
VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. �2000e et
seq.; Section 501 of the Rehabilitation Act of 1973, as amended, 29
U.S.C. �791 et seq.; the Age Discrimination in Employment Act of 1967
(ADEA), as amended, 29 U.S.C. �621 et seq. If complainant believes that
the agency's subsequent action was discriminatory, she should contact
an EEO counselor to initiate a new complaint. See Allen v. Interior,
EEOC Request No. 05970352 (Aug. 11, 1998).
CONCLUSION
Accordingly, the agency's decision is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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 64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. �1614.405). 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 64 Fed. Reg. 37,644, 37,661 (1999)
(to be codified and hereinafter referred to as 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 (S1199)
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:
December 9, 1999
____________________________
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_______________ __________________________
Date Equal Employment Assistant 1On November 9, 1999, revised
regulations governing the EEOC's federal sector complaint process
went into effect. These regulations apply to all federal sector
EEO complaints pending at any stage in the administrative process.
Consequently, the Commission will apply the revised regulations found
at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at WWW.EEOC.GOV.