Susan J. Linza, Complainant,v.R. James Nicholson, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionAug 9, 2005
01a52211 (E.E.O.C. Aug. 9, 2005)

01a52211

08-09-2005

Susan J. Linza, Complainant, v. R. James Nicholson, Secretary, Department of Veterans Affairs, Agency.


Susan J. Linza v. Department of Veterans Affairs

01A52211

August 9, 2005

.

Susan J. Linza,

Complainant,

v.

R. James Nicholson,

Secretary,

Department of Veterans Affairs,

Agency.

Appeal No. 01A52211

Agency Nos. 98-4506; 99-5334; 2004-1196; 2004-2121

DECISION

Complainant filed a timely appeal with this Commission from a final

decision (FAD) by the agency dated December 20, 2004, finding that it

was in compliance with the terms of the July 7, 2000 settlement agreement

into which the parties entered. See 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:

This agreement, its terms, and all prior settlement discussions are

strictly confidential, and will be disclosed to no one absent prior

written authorization. Notwithstanding this confidentiality provision,

the parties agree and understand that the Agreement and matters

pertaining to it will only be disclosed by the Agency to individuals

responsible for implementing and processing its terms, and in strict

adherence to release of information laws that the Agency must follow.

By letter to the agency dated December 2, 2004, complainant alleged

that the agency violated the confidentiality clause of the settlement

agreement and also alleged that the agency processed her EEO complaint

inappropriately. In a decision dated December 20, 2004, the agency

found that it did not breach the settlement 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 O 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, complainant alleged that the agency breached

the confidentiality clause of the settlement agreement when one of

the agency's human resources relations specialists had knowledge and

possession of her settlement agreement. Complainant additionally

alleged that this agency official harassed her by wanting to clarify

issues and then determine if the issues warranted mediation. The agency

explained that this official is required to aid management in responding

to all aspects of Employee and Labor Relations matters. Further, this

agency official holds a position that requires her to have knowledge

and possession of any settlement agreement which serves to impact the

agency's role as it relates to Employee and Labor Relations matters.

We agree with the agency in finding that this agency official's job falls

within the purview of having the need to know. Therefore, we find that

the agency complied with the terms of the settlement agreement.<1>

Accordingly, we AFFIRM the agency's decision finding no breach of the

settlement agreement.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0701)

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 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 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 (S0900)

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:

______________________________

Carlton M. Hadden, Director

Office of Federal Operations

August 9, 2005

_________________

Date

1 To the extent that complainant argues

on appeal that the agency inappropriately processed agency Complaint

No. 2004-0659-2005100060, complainant must raise that argument either

with an EEOC Administrative Judge or, after the agency takes final action

on agency Complaint No. 2004-0659-2005100060, with this Commission. See

EEOC Management Directive, Ch. 5 �IV(d) (November 11, 1999). The only

claim ripe for the Commission's review at this juncture is complainant's

claim concerning breach of the July 7, 2000 settlement agreement.