01986632
08-04-2000
Lynn M. Brunsman, Complainant, v. Bruce Babbitt, Secretary, Department of the Interior, Agency.
Lynn M. Brunsman v. Department of the Interior
01986632
August 4, 2000
Lynn M. Brunsman, )
Complainant, )
)
v. ) Appeal No. 01986632
)
Bruce Babbitt, )
Secretary, )
Department of the Interior, )
Agency. )
)
DECISION
Complainant filed a timely appeal with this Commission from a final
decision (FAD) by the agency dated August 10, 1998, finding that it
was in compliance with the terms of the March 28, 1997, and August 21,
1996 settlement agreements 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 March 28, 1997, settlement agreement provided, in pertinent part,
that:
(1) The Land Acquisition officer will supervise complainant until a
Supervisory Appraiser is selected. [LW] will review complainant's
appraisal reports until a Supervisory Appraiser is selected.
(2) Based on the complainant's having completed her Development Training
Plan, she shall be promoted to the GS-11 grade as of the beginning of
the next pay period after the date of the execution of the settlement
agreement. At the time of her promotion, she will meet with the Land
Acquisition Officer for the purpose of discussing the new position
description and performance standards which she will be expected to meet.
During this meeting, complainant will be counseled on the differences
between her job elements at the GS-9 level and what is expected of her at
the GS-11 level. Additional training and experience, if any, that would
enhance complainant's performance in her new position, will be noted.
(3) The newly appointed Land Acquisition Officer is aware of this
settlement agreement and will assume responsibility for insuring that the
actions identified in this agreement take place within 15 work days from
the time all signatures have been affixed to the performance standards
and this document.
(4) The National Park Service shall not take reprisal against you as
a result of your having filed the complaint of discrimination which is
the subject of this informal resolution agreement. However, any future
complaint which you may file against the [agency] will be considered and
processed as a separate action and will in no way undermine or render
this informal resolution agreement as null and void.
(5) All parties agree to keep the terms of this informal resolution
agreement confidential, and in doing so, agree not to discuss its terms
with third parties or persons except those who need to know in order to
implement the terms contained herein.
The August 21, 1996, settlement agreement provided, in pertinent part,
that:
Each acting and appointed Lands Acquisition Officer will be advised to
make every effort to ensure that you and other office employees work in
an environment free of harassment and sexist remarks.
By letter to the agency dated April 1, 1998, complainant claimed that
the agency was in breach of both settlement agreements. Specifically,
complainant claimed that the agency breached the 1997 agreement when
she was promoted to a GS-11 Reality Specialist position instead of to
a GS-11 Appraiser position. Complainant held an Appraiser position at
the time the settlement agreement went into effect. Complainant also
claims that confidentiality was breached when the settlement agreement was
placed in her personnel file. Regarding the 1996 agreement, complainant
argues that it is the identified official who decided to reassign her,
and that he had made sexist and harassing remarks concerning her abilities
as an Appraiser.
In its August 10, 1998, FAD, the agency described the actions that were
taken to comply with the 1997 settlement agreement terms. The agency
found that the agreement did not require that complainant be placed in
a GS-11 Appraiser position, and that the Realty Specialist position was
comparable to the Appraiser position. Moreover, the agency noted that
the reassignment was the result of a major office reorganization, and
that complainant's reassignment was not precluded by the above terms.
The agency also found that maintaining the settlement agreement in
complainant's personnel file did not compromise its confidentiality.
With respect to the 1996 settlement agreement, the agency found that
complainant was working under entirely different conditions, and that
the agency had, since 1996, implemented a sexual harassment policy,
so that this claim was moot.
Volume 64 Fed. Reg. 37,644, 37,656 (1999)(to be codified and hereinafter
referred to as 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).
In the instant case, the Commission agrees with the agency's determination
that the 1997 settlement agreement did not identify a specific GS-11
position, and that therefore the agency did not breach the agreement when
it promoted complainant to a comparable position. Complainant argues
that it was understood by the parties that the agreement required that
the GS-11 promotion would be to an Appraiser position, and that agency
officials were motivated by reprisal and sex discrimination, and otherwise
failed to act in good faith, when she was reassigned to the Realty
position instead of being retained as an Appraiser, and also when she
was not later promoted to a GS-12 Appraiser vacancy. However, a plain
reading of the agreement simply does not support this interpretation.
The agreement provides for an affirmative agency obligation to place
complainant into a GS-11 position. To the extent that complainant
interpreted the provisions of the settlement agreement as requiring that
agency officials place her into a designated GS-11 Appraiser position,
such interpretation should have been reduced to writing as part of the
settlement agreement. Jenkins-Nye v. General Services Administration,
EEOC Appeal No. 01851903 (March 4, 1987). Furthermore, we agree with
the agency that maintaining the settlement agreement in complainant's
personnel file, without additional evidence of intentional or negligent
disclosure while maintained in this manner, does not constitute a breach
of the confidentiality provision.
Regarding the 1996 settlement agreement, the Commission notes that the
provision of this settlement agreement assuring that complainant will be
provided a work environment free of harassment did not provide complainant
with anything beyond which she was already entitled. Complainant's claim
of breach of this provision should be processed as a separate complaint.
If complainant wishes to pursue this matter further, she is advised to
seek EEO counseling thereon.
In conclusion, we find that the terms of both settlement agreements at
issue have not been breached as claimed by complainant, and we AFFIRM
the FAD for the reasons set forth herein.
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 (S0400)
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:
August 4, 2000
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
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.