Janice C. Hall, Complainant,v.Richard J. Danzig, Secretary, Department of the Navy, Agency.

Equal Employment Opportunity CommissionJul 13, 2000
01a01718 (E.E.O.C. Jul. 13, 2000)

01a01718

07-13-2000

Janice C. Hall, Complainant, v. Richard J. Danzig, Secretary, Department of the Navy, Agency.


Janice C. Hall, )

Complainant, )

)

v. ) Appeal No. 01A01718

Richard J. Danzig, )

Secretary, )

Department of the Navy, )

Agency. )

____________________________________)

DECISION

On December 22, 1999, complainant filed a timely appeal with this

Commission from a final decision by the agency (FAD) dated December 3,

1999, finding that it was in compliance with the terms of the December

8, 1998 settlement agreement into which the parties entered.<1> 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).

The settlement agreement provided, in pertinent part, that:

. . .

(3) [The agency] agrees to promote [complainant] to the GS-0525-07,

Accounting Technician effective 22 November 1998; and

. . .

[Complainant] and [the agency] agree that they will keep the terms and

fact of this settlement agreement completely confidential, except to the

extent disclosure may be required by law, regulation, or court order.

By letter to the agency dated November 8, 1999, complainant alleged that

the agency was in breach of the confidentiality provision contained

in the settlement agreement, and requested that the agency remove her

supervisor (S1) and require S1 to provide a written letter of apology.

Specifically, complainant alleged that S1 breached Section 7 of the

settlement agreement by telling co-workers the circumstances leading

up to and contained in the December 8, 1998 settlement agreement.

Complainant stated that on October 12, 1999, she learned that in

January or February 1999, her supervisor told Person A, Person B,

and Person C that complainant had a nervous breakdown, was a racist,

and that complainant filed an EEO complaint to show that she was better

qualified for promotion to a lead accounting position.

In its December 3, 1999 FAD, the agency concluded that the confidentiality

provision had not been breached. The agency stated that it conducted

an investigation in response to complainant's breach allegation and

as a result of the investigation concluded that there was insufficient

evidence to support complainant's allegation that the confidentiality

provision had been breached.

On appeal, complainant reiterates her argument that her supervisor's

statements in January or February 1999, constituted a breach of the

confidentiality provision of the settlement agreement. In addition,

complainant includes a copy of a January 18, 2000 letter signed by Person

A, the person who informed complainant about her supervisor's statements

constituting the alleged breach. In her letter, Person A stated that

S1 told her that complainant filed a formal complaint in response to

complainant's non-selection for a promotion to the Lead Accounting

Technician position. Person A also stated that �the factors related to

the situation between S1 and complainant were common knowledge within

the department and were often discussed among nearly all the employees.�

EEOC Regulation 64 Fed. Reg. 37,644, 37,660 (1999)(to be codified and

hereinafter referred to as 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).

In the present case, we find that complainant provided sufficient

evidence to show that the settlement agreement was breached. The agency

investigation contained in the record, indicates that S1 told Person A

that complainant had a nervous breakdown due to an overtime/compensatory

time situation and also based on the fact that complainant had not been

selected for the Lead Accounting position. In the statement submitted

on appeal, Person A states that S1 told her that complainant filed a

formal complaint against S1 because of an overtime/compensatory time

issue and because complainant was not selected for the Lead Accounting

Technician position. The settlement agreement provides that the agency

will keep the terms and fact of this settlement agreement completely

confidential, except to the extent required by law. Upon review of the

record, we find that complainant's evidence shows that S1 disclosed the

fact that complaint filed an EEO complaint and the events leading up to

the settlement agreement, which breached the confidentiality provision

contained in the agreement. Furthermore, there is no evidence to indicate

that S1's disclosure was required by law or in an effort to carry out

the terms of the agreement. Having found a breach of the settlement,

we find that in view of the execution of the other provisions of the

agreement, including complainant's promotion to the GS-0525-07 position,

equitable considerations require that the remedial relief include specific

enforcement of the agreement, rather than reinstatement of complainant's

complaint.

Accordingly, the agency's decision finding no breach was improper and

is REVERSED.

ORDER

The agency is hereby ORDERED in accordance with 64 Fed. Reg. 37,644,

37,660 (1999)(to be codified and hereinafter referred to as 29 C.F.R. �

1614.504(c)), to specifically implement the December 8, 1998 settlement

agreement, in particular provision seven, insuring that the agency keep

the terms and fact of the settlement agreement completely confidential,

except to the extent disclosure may be required by law.

A copy of documentation indicating that the agency is specifically

enforcing the agreement 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:

July 13, 2000

Date Carlton M. Hadden, Acting Director

Office of Federal Operations

CERTIFICATE OF MAILING

For timeliness purposes, the Commission will presume that this decision

was received within five (5) calendar days of mailing. I certify that

the decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

_______________ __________________________

Date 1On 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.