Ann Helm, Complainant,v.Hershel W. Gober, Acting Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionAug 31, 2000
01993308 (E.E.O.C. Aug. 31, 2000)

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.