01A12801_r
06-29-2001
Denise Harris, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.
Denise Harris v. Department of Veterans Affairs
01A12801
June 29, 2001
.
Denise Harris,
Complainant,
v.
Anthony J. Principi,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A12801
Agency No. 99-2255
DECISION
Complainant filed a timely appeal with this Commission from a final
agency decision dated February 7, 2001, finding that it was in compliance
with the terms of the June 19, 2000 settlement agreement into which the
parties entered. See 29 C.F.R. � 1614.402; 29 C.F.R. � 1614.504(b);
and 29 C.F.R. � 1614.405.
The settlement agreement provided, in pertinent part, that:
(6) Both complainant and her immediate supervisor will enter into the
ADR-Mediation process made available by the Network at the earliest
possible date;
(7) This mediation will address such issues as trust, sensitivity,
communications, etc.
By letter to the agency dated July 25, 2000, complainant alleged that
the agency breached the settlement agreement, and requested that the
agency reinstate her underlying complaint. Specifically, complainant
alleged that the agency breached the agreement when:
Complainant's former immediate supervisor and her supervisor arrived
late for the ADR meeting;
Complainant's former immediate supervisor was accompanied by her
supervisor at the ADR meeting;
The agency replaced complainant's immediate supervisor after entering
into the agreement with another person in an effort to obstruct the
mediation efforts;
The former immediate supervisor continued to make sarcastic and harassing
remarks to complainant; and
The issues of trust, sensitivity, communication, were not addressed
during the mediation sessions.
In its February 7, 2001 decision, the agency concluded that it did not
breach the agreement. Specifically, the agency found that the terms
of the agreement do not prevent the presence of additional parties at
mediation meetings nor does it address the matter of tardiness. Further,
the agency concluded that although it replaced complainant's immediate
supervisor with another individual during the mediation negotiations,
the spirit and objectives of the agreement were best served by continuing
the mediation with the former immediate supervisor. Further, the agency
found that the issues of trust, sensitivity, and communication did not
have to be separately addressed or resolved through mediation. Instead,
the agency viewed those topics as a general outline of possible matters
that might facilitate resolution of the conflict.
The record reflects that three ADR meetings were held the parties on July
18, 2000, August 14, 2000, and August 24, 2000. The participants in all
three meetings consisted of complainant, complainant's representative,
complainant's former immediate supervisor, the former immediate
supervisor's supervisor, and two mediators.
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).
Upon review, the Commission finds that the agency complied with the terms
of the settlement agreement. Regarding allegation (a), we find that the
matter of tardiness is not covered by the agreement. The agreement only
specifies that the parties will enter into mediation as soon as possible,
but is silent as to the time that the meetings will occur. Consequently,
we find no breach of its provision by this conduct. Regarding claim
(b), the Commission finds no breach of the agreement by this action.
While the agreement provides for the presence of the complainant and her
immediate supervisor, it does not exclude the presence of others at the
mediation proceedings. Further, the record documents that complainant
likewise was accompanied by an individual not identified the agreement.
With respect to claim (c), the Commission determines that continuing
mediation with the former immediate supervisor after her reassignment
constitutes a good faith effort by the agency to comply with the
settlement agreement's goals of using mediation to improve interpersonal
relations between complainant and her former supervisor, rendering the
agency in compliance with provisions 6 and 7.
Regarding claim (d), we find that this matter does not constitute a breach
of the settlement agreement. It appears that complainant is alleging
reprisal by the agency, which is beyond the scope of the settlement
agreement. Upon review, the Commission finds that these matters should
be processed as a separate complaint under 29 C.F.R. � 1614.106 rather
than as a claim of noncompliance with a settlement agreement. See 29
C.F.R. �� 1614.101(b) and 1614.105(a). If complainant has not already
done so, he must contact an EEO Counselor pursuant to � 1614.105 if
she wishes to pursue claims of discrimination on this matter.
With respect to claim (e), we likewise find that the agency complied
with the terms of the agreement. Provision 2's mandate that mediation
would address matters such as trust, sensitivity, and communication does
not constitute a literal checklist or agenda for the meetings, rather
it serves as overall guidance on facilitating a long-term resolution
to the conflict between the parties. Consequently, we find that the
agency complied with provision 7.
Accordingly, the agency's finding of no breach of the settlement
agreement is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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
June 29, 2001
__________________
Date