Nancy K. Rodgick, Complainant,v.Richard J. Danzig, Secretary, Department of the Navy, Agency.

Equal Employment Opportunity CommissionFeb 24, 2000
01991114 (E.E.O.C. Feb. 24, 2000)

01991114

02-24-2000

Nancy K. Rodgick, Complainant, v. Richard J. Danzig, Secretary, Department of the Navy, Agency.


Nancy K. Rodgick v. Department of the Navy

01991114

February 24, 2000

Nancy K. Rodgick, )

Complainant, )

)

v. ) Appeal No. 01991114

) Agency No. DON-97-60530-009

Richard J. Danzig, )

Secretary, )

Department of the Navy, )

Agency. )

____________________________________)

DECISION

On November 12, 1998, complainant filed a timely appeal with this

Commission from a final decision (FAD) by the agency dated October 28,

1998, finding that it was in compliance with the terms of the February

3, 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 29 C.F.R. � 1614.405.

The settlement agreement provided, in pertinent part, that:

(1) "The complainant and the NAWCWPNS agree that they will keep the terms,

amount, and fact of this settlement agreement completely confidential,

except to the extent disclosure may be required by law, regulation,

or court order. In addition, complainant agrees that she and her

representative will not hereinafter disclose any information concerning

this agreement or her discrimination complaint to anyone employed or

connected with the Department of the Navy, including but not limited to,

any past, present or prospective employee or applicant for employment

with the Department of the Navy.

By letter to the agency dated March 17, 1998, complainant alleged that

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

that the agency specifically implement the its terms. Specifically,

complainant alleged that the agency failed to honor the confidentiality

clause of the agreement when it allowed certain employees to read the

agreement during a meeting held for the purpose of implementing the terms

of the agreement. In its October 28, 1998 FAD, the agency concluded that

any breach that may have occurred with respect to the confidentiality

clause, was cured by subsequent acts by agency officials. The agency

also maintains that reinstatement of complainant's complaint in this

instance is impractical because she has already received the benefits

bargained for in the agreement between the parties.

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).

Here, the record indicates that on March 4, 1998, a meeting, attended

by those responsible for implementing the terms of the February 3,

1998 settlement agreement, was held. Copies of the agreement in its

entirety, were distributed to those agency employees in attendance.

Complainant contends that the agency breached the provisions of the

settlement agreement by disclosing confidential information to agency

employees. The agency asserts that the terms of the agreement were

disclosed simply for the purpose of implementing the provisions of the

settlement agreement.

The Commission notes that on appeal, the agency acknowledges that it could

have employed alternative methods to review, coordinate and implement the

terms of the settlement agreement. The agency notes, however, that only

those officials from the Human Resources Department and complainant's

management chain were involved with the implementation of the terms

of the settlement agreement; and that the agency did not intentionally

breach the confidentiality clause of the agreement.

Assuming arguendo, that the agency breached the confidentiality clause of

the February 3, 1998 agreement, a review of the record reveals that the

agency subsequently took actions to cure the breach. Specifically, the

record contains documentation supporting the agency's assertion that upon

being notified of the alleged breach, it agreed to take action to ensure

that the information in the agreement had not been disclosed to any other

parties. In addition, the agency's Deputy EEO Officer sent a memorandum

informing those agency employees who received copies of the agreement

that appropriate administrative action would be taken if the terms of

the agreement were disclosed. Pursuant to EEOC Regulation 29 C.F.R. �

1614.504, an agency has 35 days from the receipt of a complainant's

allegation of breach to resolve the matter, or to cure any disclosure.

Thus we find that any alleged breach was promptly cured by the agency in

accordance with the applicable regulations. Accordingly, the Commission

will not disturb the agency's decision, but will leave the parties in

the position and condition they bargained for. The agency's decision

is AFFIRMED for the reasons set forth herein.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M1199)

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). 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).

COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S1199)

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:

February 24, 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.