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