Linda Forsyth-Gianakis, Complainant,v.Hilda L. Solis, Secretary, Department of Labor, Agency.

Equal Employment Opportunity CommissionOct 29, 2009
0120092510 (E.E.O.C. Oct. 29, 2009)

0120092510

10-29-2009

Linda Forsyth-Gianakis, Complainant, v. Hilda L. Solis, Secretary, Department of Labor, Agency.


Linda Forsyth-Gianakis,

Complainant,

v.

Hilda L. Solis,

Secretary,

Department of Labor,

Agency.

Appeal No. 0120092510

Agency Nos. (IM01-02-014 & IM01-01-021(A))1, (DCR-7-02-108,

DCR 8-02-111, & DCR 9-02-153)

DECISION

Complainant filed a timely appeal with this Commission from a final agency

decision dated April 24, 2009, finding that the agency was in compliance

with the terms of the October 21, 1999 settlement agreement into which the

parties entered. See 29 C.F.R. �� 1614.402; 1614.405 and 1614.504(b).

During the relevant period, complainant worked at a Region II Occupational

Safety & Health Administration (OSHA) office of the agency. She filed

pre-complaints with the agency that were resolved by the October 21

settlement agreement between complainant and the agency, which provided,

in pertinent part:

10. [Complainant] may submit a worker's compensation claim for medical

problems, resulting from the work related death threat against her life.

This will be processed through the OSHA National Office. No supporting

documentation will be reviewed by any Region II OSHA management official.

No associated medical records will be maintained or reviewed by Region

II OSHA staff. [Complainant's] claim will not be controverted by

the agency. Her compensation claim and associated records will be

maintained confidential as required by the privacy act.

The settlement agreement also provided a duty station transfer, a $30,000

lump sum payment, restoration of leave, "highly effective" performance

ratings for two performance periods, and removal of negative documents

from complainant's personnel file.

By letter to the agency dated August 18, 2008, complainant alleged that

the agency was in breach of the settlement agreement, and requested that

the agency specifically implement its terms. Specifically, complainant

alleged that the agency controverted her Office of Workers' Compensation

Programs (OWCP) claim and that Region II staff had access to the claim

inappropriately.

In its April 24, 2009 final decision, the agency found no breach.

Specifically, the agency stated that complainant's OWCP claim was untimely

filed in 2008 as it was based on a June 1996 incident and the related

October 1999 settlement agreement, and that complainant failed to provide

sufficient information and documentation regarding her OWCP claim, citing

privacy concerns. The agency stated that management determined that the

October 1999 agreement did not cover the 2008 claim due to passage of time

and OWCP's three year statute of limitations. The instant appeal from

complainant followed. On appeal, complainant alleged that the agency

strongly opposed her OWCP claim in violation of the agreement and that

Region II staff had access to her claim that contained private matters.

Complainant stated that she filed her OWCP claim in January 2008 and that

OWCP denied her claim in a decision dated July 18, 2008. Complainant

added that the agency based its finding of no breach on untimely filing

of the OWCP claim but that matter was resolved in her favor by OWCP.

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, in 1999, the agency agreed that complainant could

file an OWCP claim for a work-related death threat she received and that

it would not controvert the claim or allow it to be reviewed by anyone

in her region. Complainant filed an OWCP claim eight years later.

We find that the pertinent provision of the agreement, Paragraph 10,

does not provide complainant with an indefinite guarantee of the agency

allowing her claim without opposition or Region II staff not addressing

her claim. Although, we acknowledge that OWCP found complainant's

claim appropriate for further investigation, we find it unreasonable

to obligate the agency to Paragraph 10 indefinitely without specific

timeframes delineated. Further, we note that, if we found breach, to

grant complaint reinstatement (which seems the only viable option under 29

C.F.R. � 1614.504(a)), status quo ante would apply. The state of affairs

prior to the settlement agreement would have to return and complainant

would have to return any monies or benefits received as a result of

the agreement. Based on the above, we AFFIRM the final agency decision.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M1208)

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 77960,

Washington, DC 20013. 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 (S0408)

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 (Z1008)

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 from the Court that

the Court appoint an attorney to represent you and that the Court also

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 with

the Court 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 29, 2009

__________________

Date

1 Complainant stated that the appeal includes agency complaint numbers

IM01-02-014, IM01-01-021(A), however, the record pertains to the

October 21, 1999 agreement that resolved DCR-7-02-108, DCR 8-02-111, &

DCR 9-02-153 only. In its final decision, the agency stated that the

instant appeal pertains to the latter complaint numbers only.

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0120092510

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

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0120092510