01980765
09-07-1999
Rosemary B. Rusk, Appellant, v. Bruce Babbitt, Secretary, Department of the Interior, Agency.
Rosemary B. Rusk v. Department of the Interior
01980765
September 7, 1999
Rosemary B. Rusk, )
Appellant, )
)
v. ) Appeal No. 01980765
) Agency No. LLM-95-042
Bruce Babbitt, )
Secretary, )
Department of the Interior, )
Agency. )
______________________________)
DECISION
On October 9, 1997, appellant filed this appeal with the Commission
alleging that the agency did not comply with the terms of the settlement
agreement entered into by the parties on May 13, 1996. Initially,
the agency argued that appellant's appeal was premature, as she did not
notify the agency's EEO Director of the alleged noncompliance as required
under 29 C.F.R. �1614.504(a). However, on September 16, 1998, the agency
issued a final decision (FAD) finding that it was in compliance.
The May 13, 1996 settlement agreement provided, in pertinent part, that:
(1) [W]ithin 30 days of the effective date of the agreement the Agency
shall:
(.b) Commence a position audit of [appellant's] position of Support
Services Supervisor, Palm Springs - South Coast Resource Area.
The agency will also conduct position audits of the other Support
Services Supervisor positions located in the Agency's California Desert
District, including: the Ridgecrest Resource Area, El Centro Resource
Area, Barstow Resource Area and Needles Resource Area. After completion
of all position audits, new classified position descriptions will
be prepared for each Support Services Supervisor position located in
the Agency's California Desert District. The Agency's Denver Service
Center will perform the position audits and prepare the new classified
position descriptions. The agency will use its best efforts to complete
the position audits and prepare the new classified position descriptions
within 120 days of the date of the agreement.
(3) The Agency shall not take reprisal against [appellant] either
directly or indirectly, as a result of [appellant's] having filed an
administrative complaint, or having engaged in any activity or conduct
protected by Title VII of the Civil rights Act of 1964, as amended,
or by any other statute or regulations.
The parties further agree that the terms of this Agreement shall remain
confidential, except to those officials who have (sic) need to know the
terms in order to fulfill their official responsibilities implementing
this Agreement.
By letter to the Commission dated October 9, 1997, appellant alleged that
the agency was in breach of the settlement agreement, and requested that
the agency reinstate her complaint from the point processing ceased.
Specifically, appellant alleged that the agency failed to utilize
an "independent and objective classifier" to conduct the desk audit,
which lead to a biased audit and the issuance of an improper position
description for appellant and the other Support Service Supervisors in
her district. In support of her allegation that the audit was biased,
appellant disclosed that approximately 115 days after the agreement was
signed, she contacted the auditor and asked about the status of the desk
audit of her position. According to appellant, the auditor informed
her that the audit would be completed in several weeks. However, after
appellant complained of the delay to an EEO Counselor, she received the
audit decision, which continued to place her position at the same grade
level, only three days later.
Appellant also alleged that the agency was in violation of provision
(8) of the agreement because its terms were disclosed to persons not
contemplated therein. In support of this allegation, appellant provided
copies of several e-mail messages purporting to show that unauthorized
individuals were told of the terms of the EEO settlement. These messages,
authored by persons whose positions within the agency are not identified,
are supportive of appellant's attempts to raise the grade of the Support
Service Supervisor positions. Additionally, neither of the messages
indicate that the audit was performed as a result of an EEO settlement.
Finally, appellant alleged that she was subjected to other acts of
discrimination and reprisal in violation of provision (3) of the
settlement agreement.
In its September 16, 1998 FAD, the agency concluded that it was in
compliance with the settlement agreement. The agency noted that
appellant was provided counseling for the acts of alleged retaliation
and discrimination to which she was subjected subsequent to the date
of the settlement agreement. Additionally, the agency asserted that it
performed the desk audits of the Support Service Supervisors positions
as required by the agreement. In support of this assertion, the agency
provided a copy of an advisory opinion desk audit dated September 9,
1996, finding that the Support Service Supervisors were correctly graded.
Without comment, the agency also concluded that there was no breach of
the confidentiality provision of the agreement.
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, we concur with the agency's finding that it was in
compliance with the May 13, 1996 settlement agreement. The plain language
of the agreement did not specify that the audit would be performed by
an "independent and objective classifier," and nothing in the record
indicates that the person who performed the audit failed to meet the
criteria identified in provision (1.b) of the settlement agreement.
Additionally, we find that the fact that the auditor completed the audit
faster than anticipated after appellant complained to an EEO Counselor,
is insufficient evidence of bad faith or bias.
We further find that appellant presented no evidence supporting her
claim that the agency breached the confidentiality provision of the
settlement agreement. Nowhere in the e-mail messages provided by
appellant in support of her claim do the authors indicate that the audit
was performed as a result of an EEO settlement. Moreover, given the fact
that both authors support the grade increase for appellant's position, we
find it unlikely that the agency would have released such information.
Finally, the Commission has held that a complaint which alleges reprisal
or further discrimination in violation of a settlement agreement's "no
reprisal" clause, is to be processed as a separate complaint and not
as a breach of settlement. Bindal v. Department of Veterans Affairs,
EEOC Request No. 05900225 (August 9, 1990); 29 C.F.R. �1614.504(c).
The record in this case discloses that these allegations were processed
accordingly.
Based on the foregoing, we find that the agency was in compliance with
the May 13, 1996 settlement agreement, and, therefore, the final agency
decision is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. In the alternative, you may file a
civil action AFTER ONE HUNDRED AND EIGHTY (180) CALENDAR DAYS of the date
you filed your complaint with the agency, or filed your appeal with the
Commission. 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. Filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1092)
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:
Sept. 7, 1999
____________________________
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations