01993308
08-31-2000
Ann Helm, Complainant, v. Hershel W. Gober, Acting Secretary, Department of Veterans Affairs, Agency.
Ann Helm v. Veterans Affairs
01993308
August 31, 2000
.
Ann Helm,
Complainant,
v.
Hershel W. Gober,
Acting Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01993308
DECISION
On March 16, 1999, the complainant filed a timely appeal with
this Commission from an August 21, 1998 final agency decision,<1>
finding that it was in compliance with the terms of the December 29,
1994 settlement agreement into which the parties entered.<2> See 64
Fed. Reg. 37,644, 37,659, 37,660 (1999)(to be codified and hereinafter
referred to as EEOC Regulation 29 C.F.R. � 1614.402); 29 C.F.R. �
1614.504(b); and 64 Fed. Reg. 37,644, 37,659 (1999)(to be codified at
29 C.F.R. � 1614.405).
Paragraph 4(d) of the December 29, 1994 settlement agreement provided
as follows:
The parties agree that the facts of this settlement agreement and all
terms contained therein shall not be publicized in any manner except as
necessary for the parties to carry out the terms of the agreement.
In a November 26, 1997 letter to the agency, the complainant notified the
agency that it was in breach of the settlement agreement. Specifically,
the complainant alleged that the agency had breached the confidentiality
provision of the settlement provision when it released specific details of
the agreement to the agency's Assistant Director for Human Resources and
Administration (Assistant Secretary for HR). She referenced an October
8, 1997 Memorandum from the Assistant Secretary for HR. The complainant
also noted that because of the alleged breach, she was entitled to reopen
her complaint.
In its final decision, the agency concluded that it was not in breach
of the confidentiality provision. The agency stated that the October
8, 1997 Memorandum was an internal agency document used to highlight
�high interest� cases and the information was not publicized or released
to sources outside the agency. The agency noted in its decision that
the Secretary of Veterans Affairs had designated responsibility to the
Assistant Secretary for HR for the oversight of the Office of Resolution
Management, the agency office which processes agency complaints of
discrimination.
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 (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).
EEOC Regulation 29 C.F.R. � 1614.504(a) also provides that if the
complainant believes that the agency failed to comply with the terms of a
settlement agreement, the complainant should notify the Director of Equal
Employment Opportunity, in writing, of the alleged noncompliance with
the settlement agreement, within thirty (30) days of when the complainant
knew or should have known of the alleged noncompliance. The complainant
may request that the terms of the settlement agreement be specifically
implemented or, alternatively, that the complaint be reinstated for
further processing from the point processing ceased.
The record contains a copy of the October 8, 1997 Memorandum from the
Assistant Secretary for HR. The Memorandum was sent to the Deputy
Assistant Secretary for Administration, Deputy Assistant Secretary
for Human Resources Management, Deputy Assistant Secretary of Equal
Opportunity, Director of the Management and Administrative Support
Office and Counselor to the General Counsel. The Memorandum indicates
that attached was a list of �Special Focus Cases,� showing the status of
field and headquarters cases that �[his] staff had identified as being of
high interest.� The Memorandum also notes that because the information
was of a sensitive nature that he would send the list directly to all
the recipients of the Memorandum �to coordinate the update within [each]
organization.� The recipients were directed to send the update to JW.<3>
In the Memorandum's attachment of special focus cases, the complainant
was identified. The Memorandum also identified the amount of her
settlement agreement, noting that the agency had settled because of the
extraordinary amounts of staff time and resources that were dedicated
to the complainant's complaint. The attachment also noted that the
agency did not believe that the agency official had engaged in sexual
harassment or discrimination of the complainant and that the record
failed to support her claims.
On appeal, the complainant argues that the parties specifically agreed in
the settlement agreement not to disclose the terms of the agreement except
as necessary to carry out the terms of the agreement. She asserts that
there was nothing in the agreement that would justify the circulation
of the Memorandum and its attachment or that would allow the agency
to circulate her name. The complainant also asserts that disclosure
of the provisions of the agreement went beyond the recipients' need
to know. The complainant further asserts that there was no legitimate
need for the agency to continue to designate her complaint as a �high
interest� case three years after the parties had settled. She states
that the Memorandum serves to blacklist her from Federal employment
and was part of a continuing pattern of harassment by the agency to
preclude her from such employment. The complainant also asserts that
by circulating the Memorandum, the agency intended to portray her as
a �sicko� with meritless claims. She further asserts that even if
there was a legitimate need for the agency to circulate the terms of
the agreement, the agency was not circulating accurate information.
The complainant asks that the settlement be declared null and void and
that a thorough investigation of her original allegations be conducted.
In its response to the complainant's appeal, the agency maintains that
the terms of the settlement agreement were not breached. The agency
asserts that the Memorandum was an internal document and therefore
it had not publicized the terms of the agreement. The agency also
asserts that the Memorandum was written to �high level officials� during
Congressional scrutiny of several agency sexual harassment complaints.
The agency also asserts that reference was made to the complainant's
complaint in the Memorandum only after the agency was informed by a
Veterans Affairs House Committee that the complainant was in contact
with the House Committee and that she had informed the Committee of her
previous EEO complaint. The agency therefore concluded that it would
include the Memorandum in order that the Congressional Committee might be
informed of the complaint's status. The agency also argues that if the
complainant wishes to reinstate her complaint that she has to reimburse
the agency for the monies she was paid.
In the present case, the Commission finds that the agency breached the
confidentiality provision of the settlement agreement. The complainant
provided evidence that one of the terms of the settlement agreement was
disclosed, i.e., the money amount of the settlement. The plain language
of the settlement agreement explicitly required that its terms could
only be disclosed when necessary to carry out its terms. The agency
has not shown how its disclosure was necessary to implement the terms
of the agreement.<4>
Where, as here, a breach is found, the remedial relief is either the
reinstatement of the complaint for further processing or specific
enforcement of the settlement agreement. If the complainant's
complaint is reinstated for further processing, then the parties must
be returned to the status quo at the time that the parties entered into
the settlement agreement, which requires that the complainant return
any benefits received pursuant to the settlement agreement. See, e.g.,
Armour v. Department of Defense, EEOC Appeal No. 01965593 (June 24,
1997); Komiskey v. Department of the Army, EEOC Appeal No. 01955696
(September 5, 1996). In the present case, the complainant requested
that her complaint be reinstated for further processing. Consequently,
on remand, the complainant shall be advised that in order to reinstate
her complaint, a condition precedent is the return of any benefits
received through the execution of the other provisions of the agreement.
In view of this requirement, we therefore give the complainant the option,
in accordance with the Order below, of either returning the benefits
conferred pursuant to the agreement and reinstating the complaint, or
keeping the benefits conferred pursuant to the agreement and having the
agreement specifically enforced.
Finally, the Commission notes that to the extent that the complainant
may be alleging that the settlement agreement was breached by subsequent
discriminatory actions, she must initiate EEO Counselor contact to file
a separate complaint, if she has not already made such contact or filed
a complaint.<5>
Based on the foregoing, the agency's finding of no breach is REVERSED,
and the claim is REMANDED to the agency for further processing, consistent
with the Order below.
ORDER
The agency is ORDERED to notify the complainant of her option to return
to the status quo prior to the signing of the settlement agreement and
having her complaint reinstated or having the terms of the agreement
specifically enforced. The agency shall so notify the complainant
within fifteen (15) calendar days of the date this decision becomes
final. The agency shall also notify the complainant that she has fifteen
(15) calendar days from the date of her receipt of the agency's notice
within which to notify the agency of her choice. The complainant
shall be notified that in order to return to the status quo ante,
she must return any benefits received pursuant to the agreement. The
agency shall determine any payment due the complainant, or return of
consideration or benefits due from the complainant, within thirty (30)
calendar days of the date this decision becomes final, and shall include
such information in the notice to the complainant.
If the complainant elects to return to the status quo ante and she
returns any monies or benefits owing to the agency, as specified above,
the agency shall resume processing the complainant's complaint from
the point processing ceased pursuant to 29 C.F.R. � 1614.108 et seq.
If the complainant elects not to return to the status quo ante, i.e.,
not to return any consideration owing the agency, the agency shall
notify the complainant that the terms of the settlement agreement will
be specifically enforced.
A copy of the agency's notice to the complainant regarding her options,
including the determination of consideration due or owing, as well
as a copy of either the correspondence reinstating the complaint for
processing or the correspondence notifying the complainant that the
terms of the agreement will be specifically enforced, must be sent to
the Compliance officer, as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K1199)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to the
complainant. If the agency does not comply with the Commission's order,
the complainant may petition the Commission for enforcement of the order.
29 C.F.R. � 1614.503(a). The complainant also has the right to file a
civil action to enforce compliance with the Commission's order prior
to or following an administrative petition for enforcement. See 64
Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. �� 1614.407, 1614.408), and 29 C.F.R. �
1614.503(g). Alternatively, the complainant has the right to file a
civil action on the underlying complaint in accordance with the paragraph
below entitled "Right to File A Civil Action." 29 C.F.R. �� 1614.407
and 1614.408. A civil action for enforcement or a civil action on the
underlying complaint is subject to the deadline stated in 42 U.S.C. �
2000e-16(c)(Supp. V 1993). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 64 Fed. Reg. 37,644, 37,659 (1999)
(to be codified and hereinafter referred to as 29 C.F.R. � 1614.409).
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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); 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 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (R0400)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court WITHIN NINETY (90) CALENDAR DAYS from the date
that you receive this decision. In the alternative, you may file a
civil action AFTER ONE HUNDRED AND EIGHTY (180) CALENDAR DAYS of the
date you filed your complaint with the agency, or filed your appeal
with the Commission. 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.
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
August 31, 2000
__________________
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
______________________________
1It appears that the complainant did not receive the final agency decision
until late February 1999.
2On 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.
3The record does not disclose who JW is.
4The Commission notes that the agency provided no documentation to
support its assertion that the Memorandum was created in response to a
Congressional inquiry. Assuming that the Memorandum was designed for
this purpose, the agency nonetheless failed to show how the Memorandum
served to carry out the terms of the settlement agreement.
5Regulation 29 C.F.R. � 1614.504(c) provides that allegations that
subsequent acts of discrimination violate a settlement agreement shall
be processed as separate complaints under �1614.106 rather than as breach
allegations.