Denise Lavell, Appellant,v.Richard J. Danzig, Secretary, Department of the Navy, Agency.

Equal Employment Opportunity CommissionSep 24, 1999
01990865 (E.E.O.C. Sep. 24, 1999)

01990865

09-24-1999

Denise Lavell, Appellant, v. Richard J. Danzig, Secretary, Department of the Navy, Agency.


Denise Lavell v. Department of the Navy

01990865

September 24, 1999

Denise Lavell, )

Appellant, )

)

v. ) Appeal No. 01990865

) Agency No. 94-48902-001

Richard J. Danzig, )

Secretary, )

Department of the Navy, )

Agency. )

)

DECISION

INTRODUCTION

On November 3, 1998, appellant filed a timely appeal with this Commission

from a final decision (FAD) by the agency dated October 1, 1998,

finding that it was in compliance with the terms of the September 18,

1996 settlement agreement (SA) into which the parties entered. See 29

C.F.R. ��1614.402, .504(b); EEOC Order No. 960, as amended.

ISSUE PRESENTED

The issue presented is whether the agency properly determined that it did

not breach the settlement agreement entered into on September 18, 1996.

The settlement agreement (SA) provided that:

(1) the agency extend the term of appellant's employment as an instructor

with the agency in the San Diego area for two additional years with that

term expiring in November 1998;

(2) the agency adjust appellant's base salary from its level as of the

agreement to that of a GS-14, Step 10 which appellant will continue to

be paid until the termination of her employment in November 1998;

(3) the agency will pay appellant the sum of $60,000.00 in lieu of any

back pay, front pay, recruitment or retention bonuses to which appellant

asserted she was entitled;

(4) the agency acknowledges its obligation not to take reprisals against

appellant for filing a discrimination complaint;

(5) appellant withdraws her complaint of discrimination and violation

of the Equal Pay Act against the agency; and

(6) appellant acknowledges that she was not filed any other complaints

with respect to employment matters occurring prior to the date of the

SA.

In a letter to the agency dated September 2, 1998, appellant alleged

that the agency was in breach of the SA and requested that the agency

specifically implement its terms. Appellant alleged that the agency

failed to allow her to carry out the duties for which she was hired,

specifically to act as a Senior Leadership Seminar Instructor, during

August 1998. Appellant had been scheduled to teach an SLS class for two

weeks starting on August 7, 1998, in Iwakuni, Japan. She was denied her

request and did not receive orders that were necessary to allow appellant

to travel to Japan to teach the class. Appellant also alleges that the

agency has denied two other requests to teach SLS classes in September

and October 1998. Appellant alleges that her job description requires

designing, developing, and teaching the Senior Leaders Seminar (SLS).

Since her job description has not changed, she argues that her ability

to continue to teach the SLS class as part of maintaining her "Lead

Instructor" status should continue as part of the SA's provision that

extended the term of her employment.

In its October 1, 1998 FAD, the agency concluded that it has fully

complied with the terms of the settlement agreement and that the

allegations raised by appellant do not constitute breach of the

agreement terms. The agency found that the portion of the agreement on

which appellant relied was fulfilled by the agency. Appellant's term

appointment had been extended to November 1, 1998. The agency found that

there had been no action taken to change appellant's employment with the

agency and appellant's term ended on November 1, 1998. It also noted

that SLS and other Total Quality Leadership Courses had been phased out

by the agency and incorporated into all of its leadership courses during

the second quarter of 1998. The agency also found that had it not been

for the settlement agreement, appellant would have had her appointment

terminated in January 1998. Finally, the agency found that there was

nothing in the settlement agreement, nor in her position description

to suggest that she was entitled to any benefit of certification as a

lead instructor. This appeal followed.

ANALYSIS AND FINDINGS

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.

That section further provides that if the complainant believes that the

agency has failed to comply with the terms of a settlement agreement,

the complainant shall notify the Director of Equal Employment Opportunity

of the alleged noncompliance with the settlement agreement within 30

days of when the complainant knew or should have known of the alleged

noncompliance. 29 C.F.R. �1614.504(a). The complainant may request

that the terms of the settlement agreement be specifically implemented

or request that the complaint be reinstated for further processing from

the point processing ceased.

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 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 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, we find that the agency fully complied with the

SA with respect to appellant's term of employment. The SA directed the

agency to extend the term of appellant's employment as an instructor with

the agency. The plain meaning of the SA does not address the duties

to be performed by appellant, nor does it specify that appellant must

be certified as "Lead Instructor." Since such language did not appear

in the SA, and the agency fully complied with the plain language of the

SA because it extended appellant's term of employment as an instructor

with the agency until her term expired, the Commission finds that the

agency did not breach the SA.

Furthermore, although the issue is presently not before us, the Commission

notes that appellant, through her representative, contacted the Commission

by letter dated November 29, 1998. In it, appellant further alleges that

the agency committed other acts in breach of the SA. Appellant alleges

that the agency did so in the following manner:

1) The agency has made the terms of the SA known to non-parties in

violation of the Confidentiality Agreement;

2) The agency has kept multiple files on appellant which include the

terms of the SA which has been made known to non parties.

3) The agency has retaliated against appellant because of the SA; and

4) The agency has retaliated against appellant by falsely slandering

appellant's professional reputation with potential employers.

With regard to new allegations (3) and (4), appellant should contact an

EEO Counselor if she wishes to pursue these claims as new compliants

within fifteen days of receipt of this decision. As to the new

allegations (1) and (2), there is insufficient information for the

Commission to render a decision on the allegations of further breach

of the SA by the agency. The Commission advises appellant to contact

the agency regarding these new allegations of further breach per the

Noncompliance Procedure, as proscribed in the SA.<1>

CONCLUSION

Accordingly, the agency's decision finding no breach of the SA is AFFIRMED

for the reasons set forth herein.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0795)

The Commission may, in its discretion, reconsider the decision in this

case if the appellant or the agency submits a written request containing

arguments or evidence which tend to establish that:

1. New and material evidence is available that was not readily available

when the previous decision was issued; or

2. The previous decision involved an erroneous interpretation of law,

regulation or material fact, or misapplication of established policy; or

3. The decision is of such exceptional nature as to have substantial

precedential implications.

Requests to reconsider, with supporting arguments or evidence, MUST

BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this

decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive

a timely request to reconsider filed by another party. Any argument in

opposition to the request to reconsider or cross request to reconsider

MUST be submitted to the Commission and to the requesting party

WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request

to reconsider. See 29 C.F.R. �1614.407. All requests and arguments

must bear proof of postmark and 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 filed on the date it is received

by the Commission.

Failure to file within the time period will result in dismissal of your

request for reconsideration as untimely. If extenuating circumstances

have prevented the timely filing of a request for reconsideration,

a written statement setting forth the circumstances which caused the

delay and 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).

RIGHT TO FILE A CIVIL ACTION (S0993)

It is the position of the Commission that 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.

You should be aware, however, that courts in some jurisdictions have

interpreted the Civil Rights Act of 1991 in a manner suggesting that

a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the

date that you receive this decision. To ensure that your civil action

is considered timely, you are advised to file it WITHIN THIRTY (30)

CALENDAR DAYS from the date that you receive this decision or to consult

an attorney concerning the applicable time period in the jurisdiction

in which your action would be filed. 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 (Z1092)

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:

Sept. 24, 1999

DATE Carlton M. Hadden, Acting Director

Office of Federal Operations

1 If appellant notifies the agency of these allegations of breach, the

date of the notification will be December 2, 1998, the date on which

the Commission received appellant's letter regarding appellant's further

allegations of breach of the SA.