0120082007
03-24-2009
Tamar Lasky, Complainant, v. Michael O Leavitt, Secretary, Department of Health and Human Services, Agency.
Tamar Lasky,
Complainant,
v.
Michael O Leavitt,
Secretary,
Department of Health and Human Services,
Agency.
Appeal No. 0120082007
Agency No. NIHNICHD050002
DECISION
Complainant filed a timely appeal with this Commission from a final
decision (FAD) by the agency dated February 25, 2008, finding that it
was in compliance with the terms of the November 28, 2005 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 (Agreement) provided, in pertinent part, that:
(1) The [agency] will notify [complainant] by certified mail to her
home address of the interest of [agency] staff to develop any manuscript
emanating in the next two years from the data files generated from
the projects of the first year when she was the Project Officer.
[Complainant] will be given an opportunity to participate in the
formulation and generation of any of those manuscripts. After receipt
of such notice sent by certified mail to [complainant's] home address,
[complainant] will notify the [agency] of her interest along with a
description of her proposed role by certified mail within five working
days of receipt of the notice.
By letter to the agency dated January 24, 2008, complainant alleged that
the agency was in breach of the Agreement, and requested that the agency
specifically implement its terms. Specifically, complainant alleged that
the agency failed to notify her about three publications that emanated
from data files generated from the projects of complainant's first year
as Project Officer, and failed to give her the opportunity to participate
in the formulation and generation of the manuscripts.
In its February 25, 2008 FAD, the agency concluded that it had not
breached the Agreement. The agency pointed out that complainant was
identified as an author on one of the publications (P1) and the agency
therefore found it was within "the spirit and intent of the Agreement,"
FAD, p. 4, with regards to P1. The agency further found that the
remaining two publications (P2 and P3) did not use data files generated
from projects from the first year complainant was Project Director.
Instead, the agency found, these publications used data files "that
were developed well after complainant ceased being Project Director."
Id., p. 3.
On appeal, complainant argues that the agency is misconstruing the
meaning of the word "emanate" in the Agreement. Complainant argues
that "emanate" means "to come out from a source" and that even assuming
that P2 and P3 used data files developed after the relevant period, such
publications nevertheless emanated from projects from complainant's first
year as Project Director because "the concepts and principles designed
by [complainant] were crucial to the publications," complainant's
Appeal Brief, p. 8, in question. Furthermore, complainant argues,
the agency concedes that the research behind P2 and P3 "rely on the
concepts and principals originated by [complainant's] work," id.,
when it stated in the FAD that "complainant's data files (developed in
the first year she was a project officer) continue to be enhanced and
modified subsequent to her being removed as Project Officer." FAD,
p. 3. Complainant further contends that the agency does not appear
to dispute complainant's contention that, even though she was named as
an author of P1, she was not provided the opportunity to participate
in the formulation and generation of P1, as required by the Agreement.
Complainant asks for specific performance of the Agreement since too
much time has passed and the remaining terms of the Agreement have
been met, such that reinstatement of the original complaint would be
"an illogical result." Complainant's Appeal Brief, p. 10. The agency
did not provide an argument on appeal.
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 we find that the agency breached the agreement
when it did not provide complainant the opportunity to participate in
the formulation and generation of P1. The agency argues that it is in
substantial compliance with the Agreement because it named complainant
as one of the authors of P1. We disagree. The requirement to provide
complainant with the opportunity to participate in the formulation and
generation of manuscripts, and the requirement to identify complainant
as author, are separate requirements, albeit that they appear within the
same numbered section of the Agreement. The Agreement indicates that
the naming of complainant as an author is contingent on her meeting the
requirements "listed in the International Committee of Medical Journal
Editors Uniform Requirements for Manuscripts Submitted to Biomedical
Journals: Writing and Editing for Biomedical Journals (Medical Journal
Requirements)." Agreement, p. 3. The requirement to provide complainant
with the opportunity to participate in the formulation and generation
of manuscripts, however, is contingent only on agency staff showing
an interest to develop manuscripts emanating from data files from
complainant's first year as Project Director. Therefore even assuming
that the agency developed a manuscript that emanated from the data files
generated from complainant's first year as Project Manager, and that the
agency properly notified complainant and provided her the opportunity
to participate in the formulation and generation of such a manuscript,
the agency could still refrain from crediting her as an author without
breaching the agreement if complainant failed to meet the requirements
outlined in the Medical Journal Requirements. Complainant bargained for
the right to be notified, and in her breach allegation she alleges breach
when she was not notified. Complainant may well feel that naming her
as an author of a manuscript when she had no opportunity to participate
in its formulation or generation is disadvantageous to her because she
may disagree with the some or all of the final manuscript. For these
reasons we find that the agency has not shown that naming complainant
as an author of P1 substantially complies with the separate requirement
to notify her and provide her with an opportunity to participate.
As regards P2 and P3, however, we find no breach. Complainant argues
that even assuming that P2 and P3 used data files developed after the
relevant period, such publications nevertheless emanated from projects
from her first year as Project Director because the concepts and
principles she designed were crucial to the publications in question.
Complainant contends that the FAD's argument that "complainant's data
files . . . continue to be enhanced and modified subsequent to her being
removed as Project Officer" supports her argument that the research
behind P2 and P3 relied on the concepts and principals originated by
her work. We find, however, that the Agreement does not require the
agency to notify complainant of manuscripts generated based on "concepts
and principles" designed by complainant. Instead, the requirement to
notify complainant is triggered when agency staff develop an interest in
developing a "manuscript emanating . . . from the data files generated
from the projects of the first year when she was the Project Officer"
(emphasis added). As noted above, in interpreting the language of such
agreements, the Commission relies on the plain meaning rule. See Hyon.
The plain meaning of "data file" is a file containing raw data, not more
general "concepts and principles." Complainant has not shown that the
data files generated from projects from her first year as Project Officer
contained concepts and principles that were used in P2 and P3. Nor has
she shown that such data files contained data that were used in P2 and P3.
Finally, complainant has not shown that the data that was used in P2 and
P3 emanated from her data files from her first year as Project Director.
CONCLUSION
For the above reasons, we find that the agency breached the Agreement when
it failed to notify complainant and failed to provide her an opportunity
to participate in the formulation and generation of P1, in which she
was identified as an author. We find that complainant has not met her
burden of establishing breach when the agency failed to notify her of
P2 and P3 and failed to identify her as author.
To remedy a finding of breach, the Commission may order reinstatement
of the underlying complaint, or enforcement of the Agreement's terms.
See 29 C.F.R. � 1614.504(c). In this case, complainant has stated that
she seeks enforcement of the Agreement's terms. Such a result, however,
is not possible, since the manuscript has already been published.
Accordingly, we remand complainant's claim for further processing.
In so doing, we note that complainant has received some of the benefits
promised in the Agreement, benefits which must be returned if she wishes
to reinstate her complaint for further processing. We therefore give
complainant the option, in accordance with the Order below, of either
returning the benefits conferred pursuant to the agreement and reinstating
the complaint, or keeping the benefits and seeking future specific
performance of the Agreement with regards to any future publications
that meet the Agreement's requirements.
ORDER
The agency is ordered to notify complainant of her option to either return
to the status quo prior to the signing of the settlement agreement or
to obtain specific performance of the agreement with regards to future
manuscripts only. The agency shall so notify complainant within thirty
(30) calendar days of the date this decision becomes final. The agency
shall also notify complainant that she has fifteen (15) calendar days from
the date of her receipt of the agency's notice within which to notify
the agency either that she wishes to return to the status quo prior to
the signing of the agreement or that she wishes to allow the terms of
the agreement to stand. Complainant shall be notified that in order
to return to the status quo ante, she must return any benefits received
pursuant to the agreement. The agency shall determine any payment due
complainant, or return of consideration or benefits due from complainant,
within thirty (30) calendar days of the date this decision becomes final,
and shall include such information in the notice to complainant.
If complainant elects to return to the status quo ante and she returns
any monies or benefits owing to the agency, as specified above, the
agency shall resume processing complainant's complaint from the point
processing ceased pursuant to 29 C.F.R. � 1614.108 et seq. If complainant
elects not to return to the status quo ante, i.e., not to return any
consideration owing the agency, the agency shall notify complainant
that the terms of the settlement agreement shall stand.
A copy of the agency's notice to complainant regarding her options,
including the determination of consideration due or owing, as well
as a copy of either the correspondence reinstating the complaint for
processing or the correspondence notifying complainant that the terms
of the agreement will stand, must be sent to the Compliance Officer,
as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K1208)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30) calendar
days of the completion of all ordered corrective action. The report shall
be submitted to the Compliance Officer, Office of Federal Operations,
Equal Employment Opportunity Commission, P.O. Box 77960, Washington,
DC 20013. The agency's report must contain supporting documentation,
and the agency must send a copy of all submissions to the complainant.
If the agency does not comply with the Commission's order, the complainant
may petition the Commission for enforcement of the order. 29 C.F.R. �
1614.503(a). The complainant also has the right to file a civil action
to enforce compliance with the Commission's order prior to or following
an administrative petition for enforcement. See 29 C.F.R. �� 1614.407,
1614.408, and 29 C.F.R. � 1614.503(g). Alternatively, the complainant
has the right to file a civil action on the underlying complaint in
accordance with the paragraph below entitled "Right to File A Civil
Action." 29 C.F.R. �� 1614.407 and 1614.408. A civil action for
enforcement or a civil action on the underlying complaint is subject
to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999).
If the complainant files a civil action, the administrative processing of
the complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 77960,
Washington, DC 20013. 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 (R0408)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court within ninety (90) calendar days from the date
that you receive this decision. 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 (Z1008)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with the
Court 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
March 24, 2009
__________________
Date
2
0120082007
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
7
0120082007