Lynn M. Brunsman, Complainant,v.Bruce Babbitt, Secretary, Department of the Interior, Agency.

Equal Employment Opportunity CommissionAug 4, 2000
01986632 (E.E.O.C. Aug. 4, 2000)

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.