01A22090_r
12-06-2002
Victoria M. Callison, Complainant, v. Gordon R. England, Secretary, Department of the Navy, Agency.
Victoria M. Callison v. Department of the Navy
01A22090
December 6, 2002
.
Victoria M. Callison,
Complainant,
v.
Gordon R. England,
Secretary,
Department of the Navy,
Agency.
Appeal No. 01A22090
Agency No. 1F 02-00242-003
DECISION
Complainant filed a timely appeal with this Commission from a final agency
decision dated February 5, 2002, finding that it was in compliance with
the terms of a December 5, 2001 settlement agreement. See 29 C.F.R. �
1614.402; 29 C.F.R. � 1614.504(b); and 29 C.F.R. � 1614.405.
The December 5, 2001 settlement agreement provided, in pertinent part,
that:
(2)(a) [Complainant's supervisor] will hold a stand-up meeting with
his employees in the presence of [complainant's representative]
within 14 days of the signing of this agreement. At this meeting, he
will advise all employees that he intends to acknowledge and respond
in a professional manner to their questions. At this same meeting,
[complainant's supervisor] will advise all employees that he will meet
with them privately, at their request, to discuss specific personnel
issues involving themselves or other employees but will not violate the
privacy rights of any individual.
(b) [An agency management representative] will arrange a meeting within 30
days of the signing of this agreement with a Human Resources Compensation
expert (preferably [an identified agency official]) to brief the personnel
in [complainant's supervisor's] shop regarding the process for dealing
with personnel who are medically restricted from fully performing their
original assignment.
(3) [Complainant], in consideration of the mutual promises contained here:
Withdraws and dismisses with prejudice the aforesaid discrimination
complaint IF 02-00242-003.
By email to the agency dated January 23, 2002, complainant's
representative alleged that the agency breached the settlement agreement.
Specifically, the representative alleged that the agency breached
provisions (2)(a), (b) and 3 by failing to act in �a timely manner.�
In its February 5, 2002 final decision, the agency found no breach.
The agency noted that provisions 2(a) and (b) address agency management's
obligations while provision 3 addresses complainant's obligation.
The agency then concluded that the meetings identified in provisions
(2)(a) and (b) were held, although not within the specified time frames
given the holiday and workload schedules.
With respect to provision (2)(a), the agency stated that the record
reflected that complainant's Supervisor held two stand-up meetings on
January 11 and January 14, 2002 and that complainant's representative
attended the January 14, 2002 meeting. Regarding provision (2)(b),
the agency noted that the record shows that the briefings were given on
January 11 and 14, 2002. The agency concluded that there is no showing
that it acted in bad faith or that complainant suffered any loss resulting
from the delays. The agency further concluded that it has substantially
complied with the agreement by completing the requisite meetings.
On appeal, complainant's representative contends that with respect to
provision (2)(a) of the agreement, the agency completely disregarded the
agreement by not notifying him of the meeting time until after the first
meeting that took place on January 11, 2002. Further, the representative
contends that the second meeting was scheduled for January 14, 2002,
the same day that he had a doctor's appointment.
In response, the agency restates the position it took in the
final decision. The agency further states that on January 11, 2002,
complainant's representative was advised on the morning of the meeting
but that he failed to open his email until 2:45 p.m. that afternoon.
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).
Provision 2(a)
Regarding provision (2)(a), the Commission determines that agency stated
in response to complainant's appeal, complainant's representative was
not present at the January 11, 2002 meeting because he did not open
his email until later that afternoon. The Commission notes, however,
that irrespective of complainant's representative not being present
at the January 11, 2002 meeting, provision 2(a) was not breached.
The Commission specifically notes that provision 2(a) imposed an
affirmative agency obligation to hold one stand-up meeting, in the
presence of complainant's representative, and that such a meeting was held
on January 14, 2002. We note, moreover, that failure to satisfy a time
frame specified in a settlement agreement does not preclude a finding of
substantial compliance of its terms, especially when all required actions
were subsequently completed. Lazarte v. Department of the Interior,
EEOC Appeal No. 01954274 (April 25, 1996). Complainant has not shown
that she was harmed by the delay. Accordingly, we AFFIRM the agency's
finding of no breach of provision 2(a).
Provision 2(b)
Regarding provision (2)(b), we note in the email correspondence
alleging breach, complainant's representative claimed that the agency
was in breach of provision (2)(b) by failing to act in a timely manner.
We further note that the representative does not allege that the meeting
did not take place. We find that the agency conducted two briefings
on January 11 and January 14, 2002. As in our analysis of provision
2(a), above, we find that complainant has not shown that the agency's
failure to satisfy the time frame for the briefing caused her any harm.
Consequently, we AFFIRM the agency's finding that it substantially
complied with provision (2)(b).
Provision 3
With respect to provision (3), we determine that the agency properly
determined that there was no breach of provision (3). The agency properly
found that there is nothing in the provision that obliged the agency to
take any action.
Accordingly, the agency's decision finding no settlement breach of
provisions 2(a), (b) and 3 is 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 6, 2002
__________________
Date