01976447
06-02-1999
Teresa L. Owens, Appellant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.
Teresa L. Owens v. Department of Veterans Affairs
01976447
June 2, 1999
Teresa L. Owens, )
Appellant, )
)
v. ) Appeal No. 01976447
)
Togo D. West, Jr., )
Secretary, )
Department of Veterans Affairs, )
Agency. )
)
DECISION
The appellant timely filed an appeal with this Commission from a final
decision, dated July 29, 1997, which the agency issued pursuant to EEOC
Regulation 29 C.F.R. �1614.504(b). The Commission accepts the appellant's
appeal in accordance with EEOC Order No. 960, as amended.
ISSUE PRESENTED
The issue presented in this appeal is whether the record demonstrates
that the agency violated the terms of an EEO settlement agreement between
the parties.
BACKGROUND
The appellant filed an EEO complaint, dated October 8, 1993, wherein she
alleged that based on her sex and disability, an agency official made
discriminatory statements to her at two meetings, used inappropriate
body language of a sexual nature in her presence, and failed to adhere
to reasonable and necessary accommodations set forth by the Department
of Labor.
The parties resolved the complaint by settlement agreement on or about
May 11, 1995. The agreement provided in relevant part:<1>
There shall be a retroactive grade and pay increase, dating back to
February 1, 1993, to the Nurse II, Step 3 position. The retroactive
monies shall be issued to [the appellant] within approximately six (6)
weeks from the date of this agreement.
For all purposes, including formal change of her personnel record and
representations to the Department of Labor, the [agency] shall state that
[the appellant] is in the Nurse II category.
The [agency] will not assign, nor request [the appellant] to work more
than six (6) hours per day, every other day, with the exception of
holiday schedules.
Paragraph 3 of the agreement provides that the agreement did not limit
future increases in grade level or steps. Paragraph 12 provides that no
disparaging remarks or gestures will be made by the appellant's superiors
regarding the appellant's disability. The remaining paragraphs describe
accommodations and the handling of future questions by the appellant
regarding accommodation and treatment, The agreement did not describe
the procedures to be followed if the agency failed to comply with the
terms of the agreement.
By letter of May 26, 1997, the appellant, through her attorney, notified
the agency's Medical Center Director that the agency had failed to
comply with the terms of an EEO settlement agreement that was executed
on or about May 11, 1995. The appellant requested that her complaint,
EEOC Hearing No. 160-95-8083X, be reinstated for further processing from
the point processing ceased. She also sought compensation for losses
she had suffered as a result of the alleged noncompliance.
The appellant first alleged that the agency failed to comply with
paragraphs 1 and 2 of the agreement by not informing the Department of
Labor (DOL) that, effective February 1, 1993, the appellant had been
placed in a Nurse II, Step 3, position. The appellant also alleged that,
in response to a July 12, 1996 letter from the DOL inquiring about the
proper hourly rate of compensation, the agency provided misinformation
to the DOL, including an annual salary that was over $12,000 too low.
The appellant further alleged that the agency had repeatedly provided
information to the DOL on the status of the appellant's EEO complaint
and the terms of the settlement in violation of an implied agreement of
confidentiality. Next, the appellant alleged that the agency had wrongly
provided personnel and administrative records to the DOL and their
panel of doctors in a clear violation of her privacy. In addition,
the appellant alleged that the agency violated paragraph 9 of the
settlement agreement when, on July 12, 1996, the agency wrongly informed
the DOL that the appellant was not entitled to holiday pay. The appellant
further alleged that the agency provided other misinformation to the DOL,
including failing to inform the DOL that the appellant's return to work
up to 18 hours per week was on a trial basis.
The agency's Medical Center Director responded by letter of July 29,
1997. The Director agreed that it was inappropriate to mention the EEO
agreement to the DOL. The Director also acknowledged that the agency
had failed to communicate to the DOL the appellant's change to a Nurse
II, Step 3 position. The Director indicated that the "oversight" was
corrected by letter to the DOL, dated July 1, 1997, copies of which were
sent to the appellant and her counsel. The Director maintained that
the agency correctly informed the DOL regarding the appellant's hourly
rate of compensation. The Director indicated that without reference
to specific documents in the personnel and administrative records, he
could not agree or disagree with the appellant's assertion regarding
her privacy. The Director represented that the agency had requested
correction of the appellant's July 4, 1996 holiday pay but that no pay
had been provided because the appellant still owed the agency for twenty
(20) hours of pay stemming from time card corrections. The Director
represented that the agency had informed the DOL about the appellant's
reduction to 12 hours of work per week and that, despite the agency's
request, the DOL had yet to adjudicate the matter. The Director restated
his apology for any inconvenience that the appellant had experienced,
but opined that the agency was not liable for monies which the appellant
had not yet received from the DOL. The Director provided the appellant
with appeal rights to the Commission's Office of Federal Operations.
On appeal, the appellant seeks reinstatement of her complaint and
restitution from the agency for $65,000 she allegedly has lost to date
due to the misinformation the agency allegedly provided the DOL.
The agency's Office of General Counsel responds that it has received
no documentation from the appellant or the Commission explaining why
this matter is before the Office of Federal Operations and, therefore,
it can not provide any substantive comments.
ANALYSIS AND FINDINGS
As a threshold matter, the Commission observes that a copy of the
appellant's appeal letter (requesting that her complaint be reinstated and
referencing the May 26, 1997, and July 29, 1997 letters described above)
was included in the complaint file that was submitted to the Commission
by the agency's Office of General Counsel. Therefore, the Commission
finds that the agency was on notice of the subject matter of this appeal.
The question of whether a breach of a settlement agreement has occurred
is one of contract interpretation. The Commission has held that a
settlement agreement between an EEO complainant and a federal agency is
a contract subject to ordinary principles of contract interpretation
and construction. Diyan v. United States Postal Service, EEOC Request
No. 05950032 (February 23, 1996). Generally, when interpreting the
language of settlement agreements, the Commission applies the "plain
meaning" rule, that is, when the settlement agreement language is plain
and unambiguous on its face, its meaning is derived from the agreement's
terms without consideration of evidence from outside of the agreement.
Id. The Commission makes determinations about the parties' intent in
accordance with the plain, ordinary and common sense of the words used
in the agreement. Klein v. Department of Housing and Urban Development,
EEOC Request No. 05940033 (June 30, 1994). However, where the terms of
the agreement are ambiguous or for equitable reasons, the Commission
may go beyond the language of the agreement to ascertain the intent
of the parties. Wong v. United States Postal Service, EEOC Request
No. 05931097 (April 29, 1994).
Applying this law to the agreement at issue, the Commission finds that
the agency was required to place the appellant in a Nurse II, Step 3
position, retroactive to February 1, 1993, with back pay. The Commission
also finds that the agency was required to state that the appellant was
in the Nurse II category in the appellant's personnel record and in its
representations to the DOL. The Commission further finds that the agency
was required to provide several accommodations described in the agreement
and to refrain from making disparaging remarks and gestures regarding
the appellant's disability. In addition, the Commission finds that
the agency agreed not to assign or request the appellant to work more
than 6 hours per day, every other day, "with the exception of holiday
schedules." The Commission finds that the meaning of the latter phrase
is ambiguous. The phrase could mean that the six-hour limitation would
not apply on holidays. Alternatively, the phrase could mean that the
appellant would not be required to work on a holiday if her alternative
day schedule would include work on the holiday. The Commission finds
that the latter interpretation is more sound, given the six-hour medical
restriction in effect at the time the agreement was drafted.
As to the appellant's allegations of noncompliance, the Commission
finds that the appellant's allegations concern matters not covered by
the terms of the agreement. The Commission finds no confidentiality
provision in the agreement. The Commission also finds no provision in
the agreement requiring the agency to provide specific information to the
DOL, other than stating that the appellant was in the Nurse II category.
The Commission further finds no requirement in the agreement that the
agency would provide accurate information to the DOL. Accordingly,
the Commission finds that the appellant has not shown that the agency
has failed to comply with any term of the May 1995 agreement between
the parties.
In response to the appellant's appeal contentions, even if the Commission
were to find noncompliance in this case, the Commission is authorized by
EEOC Regulation 29 C.F.R. �1614.504(c) to order the agency to reinstate
her complaint for further processing from the point that processing ceased
or to order the agency to comply with the specific terms of the agreement.
The Regulation does not authorize the Commission to award monetary
relief for damages caused by an agency's noncompliance with the terms
of a settlement agreement. In addition, when the Commission orders an
agency to reinstate a complaint due to noncompliance with the terms of
a settlement agreement, the Commission orders both parties to return to
the point processing ceased. O'Farrell v. United States Postal Service,
EEOC Petition No. 04920001 (February 28, 1992). In the O'Farrell case the
Commission ordered the petitioner to return the money received pursuant
to the terms of the settlement agreement prior to reinstatement of her
complaint.
CONCLUSION
For the reasons stated above, the Commission AFFIRMS the agency's July
29, 1997 decision.
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. 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 (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 2, 1999
______________
Date Carlton M. Hadden, Acting Director
1The agency failed to provide the Commission with a copy of the agreement.
The appellant provided a copy of an unsigned agreement. Due to the
agency's failure to provide the Commission with a copy of the agreement,
and because the copy of the agreement provided by the appellant appears
consistent with the agency's decision, the Commission bases its decision
on the document submitted by the appellant.