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.