Francesca Williams-Smith v. Department of the Navy
01993280, 01A02909
February 8, 2002
.


Francesca Williams-Smith,
Complainant,

v.

Gordon R. England,
Secretary,
Department of the Navy,
Agency.

Appeal No. 01993280,
                01A02909

Agency No. 95-61414-014

DECISION
INTRODUCTION

Complainant filed timely appeals with this Commission from the final
decisions (FADs) by the agency dated February 5, 1999 and February 7,
2000, finding that it was in compliance with the terms of the June 24,
1998 settlement agreement into which the parties entered.   See EEOC
Regulation 29 C.F.R. § 1614.402; 29 C.F.R. § 1614.504(b); and 29 C.F.R. §
1614.405.

ISSUE PRESENTED

The issue presented is whether the agency properly determined that it
did not breach the Settlement Agreement entered into on June 24, 1998.

BACKGROUND

The Settlement Agreement (SA) provided, in pertinent part, that:

(2) Priority Consideration: Once regionalization occurs, Complainant
will have priority consideration for any vacant GS-11 Physical Security
Specialist position that becomes available at the Naval Amphibious Base,
Little Creek or at the Naval Air Station, Oceana.  Priority consideration
is good for one time, within one year from the date of regionalization.
Priority consideration is defined as considering Complainant before all
other candidates when a vacancy occurs.  If Complainant is not selected,
the reasons for the non-selection will be explained to Complainant
in writing.  If merit promotion is used, Complainant will then be
considered along with all other applicants.  Prior to regionalization,
Complainant will submit an updated resume or application for employment
to the Human Resources Office, Norfolk Little Creek Service Center,
to facilitate priority consideration.

(6) Rescind Disciplinary Actions: The Agency agrees to rescind all prior
disciplinary actions including her Letter of Caution and two suspensions.
This agreement will serve to rescind the Letter of Caution.  Complainant
will be entitled to 13 days (total) backpay for the rescinded suspensions.
Payment of backpay will be made within eight weeks after this settlement
is signed by the parties.

(14) No Retaliation: The Agency acknowledges its obligation under Title
VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e-16,
not to take reprisals against Complainant for filing a discrimination
complaint.

By letter to the agency dated February 1, 1999, complainant alleged
that the agency was in breach of the SA, and requested that the agency
specifically implement its terms.  Specifically, complainant alleged
that the agency violated paragraph 2 when it advertised a vacancy in June
1998, for a GS-9 Physical Security Specialist at Naval Air Station (NAS),
Oceana, which complainant applied for, but which vacancy announcement was
subsequently canceled.  She claimed that the position was later filled by
a former Navy military enlisted person (CO-1), who was then temporarily
detailed to complainant's facility, and who complainant was told to train
(Allegation 1).  Complainant also alleged that during the SA negotiations,
the agency representative misrepresented the status of the GS-9 vacancy
announcement to her detriment in the final form of the SA (Allegation 2).
Complainant finally alleged that the reassignment of a GS-11 or GS-12
Physical Security Specialist (CO-2) to NAS, Oceana, and the temporary
detail of CO-1 to complainant's facility, Naval Amphibious Base(NAB),
Little Creek, was a form of reprisal against her in violation of paragraph
14, and was an attempt to eliminate her from her position (Allegation 3).

In its February 5, 1999 FAD, the agency concluded that it had not breached
the SA.  It concluded that paragraph 2 of the SA had not been violated in
that the “regionalization regarding the transfer of all civilian employees
into one security organization has not occurred” and that there had not
been a GS-11 Physical Security Specialist vacancy at either the NAB,
Little Creek or NAS, Oceana.  It further noted that the details of CO-1
and CO-2 did not in any way affect any priority consideration complainant
would be entitled to for any future vacancy for the GS-11 Physical
Security Specialist position specified in the SA.  The FAD also noted
that the temporary details of CO-1 to NAB, Little Creek and CO-2 to NAS,
Oceana were just that, temporary assignments, and that both individuals
still encumbered their positions at the Security Department, Commander,
Naval Air Base, Norfolk, and Naval Air Station, Norfolk, respectively.
The FAD did not specifically address complainant's Allegation 2.
Complainant appealed that decision to the Commission in EEOC Appeal
No. 01993280.

By letter to the agency dated December 2, 1999, complainant alleged
that the agency was again in breach of the settlement agreement,
and requested that the agency specifically implement its terms.
Specifically, complainant alleged that the agency violated paragraph
6 when she discovered that the personnel forms regarding her January
1998 suspension, and February 1998 return to duty had been filed in her
Official Personnel Folder (OPF) (Allegation 4).  According to the SA,
all prior disciplinary actions, including a Letter of Caution and two
suspensions, were rescinded and complainant's OPF was to be cleared of
all relative documents.  After signing the SA, complainant reviewed her
OPF and all such documents had been removed.  Complainant had cause to
review her OPF in December 1999, and discovered that the personnel forms
referring to her January 1998 suspension had been refiled in her OPF.
Besides requesting specific implementation of the terms of the SA,
complainant also requested that she be allowed to confirm that the
documents had been removed, and requested that the agency notify her
current supervisor, who she believed had seen the documents, that the
documents should have been purged and were to be disregarded.

In its December 23, 1999 FAD, the agency concluded that the relevant
documents had actually been refiled in complainant's OPF, and that
this had “inadvertently occurred”at some point after  the return of the
file to the main personnel office charged with maintaining all OPF's.
It assured complainant that the documents had since been removed,
and that complainant would be able to review her OPF to confirm this.
The complainant further corresponded with the agency on January 10,
2000, at which time she requested that the agency notify not only her
supervisor, but “all potential...viewers, known viewers, and persons to
whom known viewers disclosed the contents of the tainted OPF, that the
illegally refiled documents were not valid and must be ignored.”  The
agency responded on February 7, 2000, and notified complainant that she
should provide them with the name and address of her current supervisor
so that it could send an official letter to him notifying him that he
should disregard the documents.  After concluding that no other personnel
had reviewed her OPF, it declined to further notify any other personnel
on the chance that they may have seen the documents, absent proof that
any other personnel had actually done so.

On March 1, 2000, complainant appealed that decision to the Commission in
EEOC Appeal No. 01A02909.  In her appeal, she claimed that the agency was
attempting to deny responsibility for its breach because in its letter of
February 7, 2000, the agency stated that the date of the SA was June 24,
1999, not June 24, 1998.  She claimed therefore, that the agency's review
the records that would indicate which personnel that might have seen her
OPF would be inaccurate as a result of this loss of one year of time.
Complainant also claimed that she had been told, upon requesting OPF
files as part of her official duties that her OPF file had been “checked
out” sometime between July 1999 and late November 1999.  On March 24,
2000, the agency provided complainant with a copy of the letter it
had sent to her supervisor, informing him of the refiling error, and
requesting that he disregard the “derogatory documents” that had been
in complainant's OPF.  The agency also reiterated its contention that
her OPF had not been released from the main personnel office during the
time period of June 24, 1999 through November 30, 1999.

On April 3, 2000, the agency wrote complainant that it had come to
its attention that there had been a typographical error in its previous
correspondence regarding the date of her SA.  The agency sent a corrected
letter to complainant's supervisor at that time, with the correct date
of the SA.  Complainant's April 8, 2000 reply letter again questioned
the agency about the information she had been given that her OPF had
been checked out.  She argued that the agency had deliberately misstated
the date of her SA in order to conceal “improper access” to her OPF by
management personnel from her former location.  She also argued that
the agency's letter to her new supervisor was inadequate in that it
did not convey that the documents which were rescinded were invalid.
The agency's appeal brief, dated April 14, 2000, stated that, relative
to the error in SA date, complainant's OPF records had been reviewed
for the period of June 24, 1998 through November 2,1999 and affirmed
that no other personnel besides complainant herself had seen her OPF.

ANALYSIS AND FINDINGS

Initially, we note that we are consolidating both of complainant's
appeals pursuant to the Commission's discretion under EEOC Regulation 29
C.F.R. § 1614.606.  Both involve allegations of violations of the same SA.

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.
That section further provides that if the complainant believes that the
agency has failed to comply with the terms of a settlement agreement,
the complainant shall notify the Director of Equal Employment Opportunity
of the alleged noncompliance with the settlement agreement within 30
days of when the complainant knew or should have known of the alleged
noncompliance.  29 C.F.R. § 1614.504(a).  The complainant may request
that the terms of the settlement agreement be specifically implemented
or request that the complaint be reinstated for further processing from
the point processing ceased.  Id.

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 reviewing settlement agreements to determine if
there is a breach, the Commission is often required to ascertain the
intent of the parties and will generally rely on the plain meaning rule.
Wong v. U.S. Postal Service, EEOC Request No. 05931097 (April 29, 1994)
(citing Hyon O v. U.S. 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, then its meaning must be determined from the
four corners of the instrument without any resort to extrinsic evidence
of any nature.  Id. (citing Montgomery Elevator v. Building Engineering
Service, 730 F.2d 377 (5th Cir. 1984)).
In the instant case, we find that the agency properly concluded that
it was not in breach of paragraph  2 of the SA, regarding complainant's
priority consideration for any vacant GS-11 Physical Security Specialist
position that would become open at either of two agency facilities.
The paragraph specifies that the agency's obligation to give complainant
priority consideration is not triggered until “regionalization occurs.”
The agency stated in its February 5, 1999 FAD that regionalization had
not yet occurred at that time, and complainant did not argue, either in
her initial letter notifying the agency of its alleged breach or on appeal
that it had.  The plain language of the SA specifies that regionalization
must occur for complainant to get priority consideration, therefore,
the agency did not breach this provision of the SA.  Additionally, the
SA specified that complainant would get priority consideration for a
GS-11 position; allegation 1 alleges that she was improperly denied a
GS-9 position.

In allegation 2, complainant claimed that the agency  misrepresented
the status of an advertised GS-9 vacancy during SA negotiations, and
that this breached paragraph 2 of the SA.  We are limited to a review of
the SA as written and signed by complainant and the agency.  We cannot,
once the SA has been finalized, go back at some later date and review
the negotiations for that SA.  "Settlement negotiations, including any
statements or proposals, are to be treated as confidential and privileged
to facilitate a candid interchange to settle disputes informally."
Harris v. Department of the Navy, EEOC Request No. 05941002 (March
23, 1995).  To allow a new complaint based on a settlement offer would
defeat this purpose.   See Millea v. Department of Veterans Affairs,
EEOC Request No. 05980235 (May 21, 1998); Montague v. Department of the
Army, EEOC Request No. 05920231 (May 2, 1992); see also Green v. United
States Postal Service, EEOC Request No. 05980207 (June 25, 1998)
(agency's withdrawal of an offer made in settlement not actionable).
Complainant was represented by counsel during the negotiations of the SA.
Paragraph 11 of the SA states that “[b]oth parties have participated in
the drafting of this agreement, both parties have [been] afforded ample
opportunity to consult with legal counsel/representative concerning the
same and both parties enter into this agreement voluntarily and knowingly,
free of duress or coercion.”  If complainant wished to include the GS-9
position in question in the terms of the SA, she and her attorney would,
presumably, have done so at the time of the SA.  We therefore find,
with respect to complainant's allegation 2, that the agency did not
breach paragraph 2 of SA.

Complainant's allegation 3 claimed that it was a form of reprisal in
violation of paragraph 14 of the SA that CO-2 was reassigned to NAS,
Oceana, and that CO-1 was temporarily detailed to NAB, Little Creek.
She also claimed that the agency was retaliating against her when they
asked her to “train” CO-1, alleging that this was part of a plan on the
part of the agency to replace complainant with someone else so that
she could “be drummed out the door.”  Complainant also  made similar
allegations regarding CO-1 in a complaint she filed with the agency on
April 30, 1999, which the agency dismissed, and which is the subject of
EEOC Appeal No.  01996682.  We find that complainant's claims regarding
CO-1 were more properly considered in that other complaint.  We also
find that complainant's claim regarding CO-2 should be the subject of
a new complaint and is inappropriate to be considered in the context of
a settlement breach claim.
Regarding allegation 4, we find that while the agency had breached
the agreement by the refiling of documents related to discipline in
complainant's OPF, we also find that upon notification, they cured that
breach and specifically implemented the terms of the SA.  We do not have
the power to order the agency to do more than that, or to pay damages
for its breach.  The regulations found at 29 C.F.R. § 1614.504(a) state
that a complainant can request that a SA be specifically implemented or
the underlying complaint reinstated.   We further find that the agency
has taken adequate steps to eradicate any effects of that breach when
it notified her present supervisor to disregard those documents if he
had seen them.  We see no reason, in the absence of proof that others
had seen the documents, to order a more widespread notification that
the discipline had been rescinded.  Any personnel who had not seen the
OPF and were unaware of the documents, would then find out about them,
which is the harm that complainant is trying to avoid in the first place.
Additionally, we find that there is no proof that the agency deliberately
misstated the date of the SA in its early correspondence to complainant
in this matter.

CONCLUSION

Accordingly, the decisions of the agency were proper and should be
AFFIRMED.

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

February 8, 2002
__________________
Date



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