01A43689_r
10-08-2004
Celia R. Romike, Complainant, v. R.L. Brownlee, Acting Secretary, Department of the Army, Agency.
Celia R. Romike v. Department of the Army
01A43689
October 8, 2004
.
Celia R. Romike,
Complainant,
v.
R.L. Brownlee,
Acting Secretary,
Department of the Army,
Agency.
Appeal No. 01A43689
Agency No. ARBLISS02AUG0008
DECISION
Complainant filed a timely appeal with this Commission from a final
decision (FAD) by the agency dated April 6, 2004, finding that it was in
compliance with the terms of a January 27, 2004 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 27, 2004 settlement agreement provided, in pertinent part,
that:
7. The Aggrieved represents and agrees that she and either her
representative or attorney will keep the terms and conditions of this
Settlement Agreement completely confidential, and that the Aggrieved and
either her representative or attorney will not disclose any information
concerning this Agreement to anyone, unless disclosure is compelled
by subpoena, necessary for the preparation of taxes and/or medical
treatment or other legal process or required to support any OWCP filing.
The Agency agrees that disclosure will only be made to those persons
with an official need to know such information in order to effectuate
that Agreement's terms.<1>
By letter to the agency dated March 3, 2004, complainant, through
her attorney, alleged breach of the instant settlement agreement,
and requested that the agency implement its terms. Specifically,
complainant claimed that �persons without a reason to know the entire
agreement have reviewed the settlement agreement in its entirety.�
Complainant further stated that a named Supervisory Management Analyst ,
who was responsible for the reinstatement of her leave was fully aware
of the settlement agreement. Furthermore, complainant stated that her
co-workers learned of the settlement agreement �as it has been the
subject of rumor, gossip and innuendoes, all to her detriment.�
In its April 6, 2004 FAD, the agency found no breach. Specifically,
the agency determined that an agency Labor Attorney stated that
the Supervisory Management Analyst was directly responsible for
implementation of the terms of the settlement agreement. The agency
further determined that the Labor Attorney stated that the Supervisory
Management Analyst initiated the paperwork necessary for the
implementation of all of the terms of the settlement agreement. With
respect to complainant's claim she was subjected to rumors concerning the
settlement agreement, the Labor Attorney stated that it is possible that
the rumors originated from the conversations she had with her co-workers.
On appeal, complainant, through her attorney, contends that five days
after she sent the agency a letter alleging breach of the settlement
agreement, she heard the Supervisory Management Analyst and a co-worker
having a conversation about her settlement agreement. In support of
her contentions, she submits a copy of her declaration. Therein,
complainant stated that she did not spread rumors or discuss the terms
of the settlement agreement with any of her co-workers.
In response, the agency argues that it complied with the terms of the
agreement by distributing a copy of the agreement to Supervisory
Management Analyst because �she is the individual who is primarily
responsible for orchestrating the nuts and bolts of the settlement
agreement and insuring that the Agency does what it says it will do.
She absolutely had to know the terms of the agreement.� The agency
further argues that it was under no obligation to redact or cut and
paste portions of the agreement and distribute them to the ones who were
responsible for fulfilling the agreement.
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).
In the instant case, the Commission finds no breach of the subject
agreement. We find that the Supervisory Management Analyst was properly
made aware of the terms of the instant settlement agreement, given her
role in implementation of the agreement. Moreover, we determine that
the agency did not improperly disseminate the terms of the settlement
agreement to co-workers who were not involved in the implementation of
its terms.
Finally, the Commission notes in her reply brief in support of her appeal,
complainant, through her attorney, contends for the first time that
the agency breached provisions b, c and d of the settlement agreement,
and requests that the Commission issue a finding of breach and "that the
agency be required to pay her damages and attorney's fees as a result of
this breach since the nature of the breach is one that is irretrievable."
Specifically, with respect to provision b, complainant claimed that
the agency did not assist her in filling out and submitting a CA-form.
Regarding provision c, complainant claimed that the agency never provided
her evidence that the Letter of Reprimand was rescinded and removed from
her personnel file. Regarding provision d, complainant claimed that
it took the agency approximately three months to pay attorney's fees.
The Commission notes that these claims were not previously raised.
It is inappropriate for complainant to raise these new claims for the
first time as part of the instant appeal.
Accordingly, the agency's finding of no breach of the settlement agreement
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
October 8, 2004
__________________
Date
1The settlement agreement also provided for
the agency to submit the necessary paperwork to restore to complainant
thirty-two hours of annual leave; that the agency would assist complainant
in filling out and submitting a CA-2, Notice of Occupational Disease form,
to include a letter that will not controvert the claim; that the agency
would submit the necessary paperwork to Civilian Personnel Advisory
Center to rescind and remove a July 30, 2002 Letter of Reprimand, from
complainant's personnel file; and that the agency would pay complainant's
attorney $2,850.00 in attorney's fees.