01A40605
08-17-2004
Carol A. Brininstool, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.
Carol A. Brininstool v. Department of Veterans Affairs
01A40605
August 17, 2004
.
Carol A. Brininstool,
Complainant,
v.
Anthony J. Principi,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A40605
Agency No. 97-0436
DECISION
Complainant filed a timely appeal with this Commission from a final
decision by the agency dated May 22, 2003, finding that it was in
compliance with the terms of a January 14, 2000 settlement agreement.
See 29 C.F.R. � 1614.402; 29 C.F.R. � 1614.504(b); and 29 C.F.R. �
1614.405.
The January 14, 2000 settlement agreement provided, in pertinent part,
that the agency would:
1(a) Ensure the environment the complainant works in is free of
reprisal.<1>
By letter to the agency dated March 17, 2003, complainant alleged
that the agency breached the January 14, 2000 settlement agreement.
Complainant claimed that she was subjected to continued harassment
and reprisal following the execution of the agreement. Specifically,
complainant claimed that on March 9, 2003, she contacted the Chief,
Central Business Office regarding her concerns of the staffing in the
admissions area. Complainant further claimed that the Chief accused
her of �grand standing,� and that he threatened her with administrative
action for unprofessional conduct. Furthermore, complainant claimed
that on March 9, 2003, she witnessed the Chief discussing complainant's
staffing concerns with two of his staff members, and found his behavior
to be harassing and slanderous.
In its May 22, 2003 decision, the agency found, in pertinent part, that
that any subsequent acts of discrimination concerning provision 1(a)
should be addressed as a separate claim instead of as a breach claim.
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 O 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).
Regarding complainant's claim that the agency retaliated against her
in violation of provision 1(a) of the instant settlement agreement, the
Commission determines that the agency properly advised her to pursue
this claim as a new complaint. EEOC Regulation 29 C.F.R. � 1614.504
provides that if a complainant believes that the agency has failed to
comply with the terms of a settlement agreement, she may request that the
terms of the agreement be specifically implemented, or, alternatively,
that the complaint be reinstated for further processing. However, the
Commission has held that a complaint which alleges reprisal of 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 claim. Bindal v. Department of Veterans Affairs, EEOC
Request No. 058900225 (August 9, 1990); 29 C.F.R. � 1614.504.<2>
Accordingly, the agency's finding of no breach 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
August 17, 2004
__________________
Date
1The settlement agreement also provides for complainant's reassignment
as a Nurse in Nursing Service; training in Walk-in Clinic procedures;
that she would retain pay effective January 2, 2000 as a GS-6, step 10
($39,689); that she would receive a payment of the difference of Nurse
1, Level 2, Step 6 ($38,691) and her current salary of GS-6, step 10
($39,689); that she would be under the direct supervision of a Nurse
Manager, Ambulatory Care and/or Associate Chief Nurse for her tour
as a Walk-in Clinic Nurse; that she would be ensured that her leave
approved under the Central Business Office would be honored as she made
the transition into a new position within Nursing Service; that she
would have opportunities for training and promotion; and that the agency
would ensure a named agency official's comments regarding complainant's
work would be removed from complainant's FY 1996-97 proficiency report.
These provisions are not at issue in the instant appeal.
2The record reflects that on June 13, 2003, the agency issued a final
decision on a formal complaint filed by complainant regarding her
claims of retaliatory harassment, in Agency No. 200J-0515-2003102316.
This matter is pending before the Commission under Appeal No. 01A34056.