0120101026
06-03-2010
Albert McNeill, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Albert McNeill,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120101026
Agency No. 200305542008102587
DECISION
Complainant filed a timely appeal with this Commission from a final
decision (FAD) by the agency dated December 8, 2009, finding that it was
in compliance with the terms of the October 7, 2008 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:
1. In return for, and in consideration of the actions specified in
paragraph 2, [complainant] hereby withdraws in its entirety his complaint
of discrimination Complaint Number 2003-0554-2008102587 . . .
2. The Agency shall:
a. Beginning FY09 (1st Quarter), the first-line Supervisor, will hold at
a minimum, quarterly mini training sessions to include but not limited
to the following topics as deemed necessary (appropriate Union officials
are invited to attend these meetings):
1. EEO Program Policies (No Fear/Whistleblower Act/Prevention of Sexual
Harassment and Reasonable Accommodations)
2. Family and Medical Leave Act (FMLA) Guidelines
3. Respect and Civility in the workplace
b. The first-line Supervisor, currently [], will send a memo to all
employees on her staff regarding the zero tolerance for inappropriate
behavior by close of business Monday, September 8th but no later than
Tuesday, September 9th, 2008.
By letter to the agency dated October 2, 2009, complainant alleged that
the agency was in breach of the settlement agreement, and requested that
the agency reinstate his original complaint. Specifically, complainant
alleged that the agency failed to provide the quarterly mini training
sessions. Complainant noted that there was only one training session
held on April 15, 2009. Since that time, complainant asserted that
there have been no other training sessions. Therefore, complainant
claimed that the agency has breached the settlement agreement.
In its December 8, 2009 FAD, the agency concluded that complainant
alleged breach in his second attempt to reinstate his original complaint
of discrimination. The agency noted that it has previously addressed his
claim of breach in another determination which was the subject of EEOC
Appeal No. 0120091896 (June 30, 2009). In that decision, the Commission
determined that complainant raised new claims of discrimination which
should be raised in a new complaint rather than a claim of breach.
Complainant did allege a new claim which was dismissed by the agency.
Therefore, based on the record, the agency believed that it did not
breach the settlement agreement. This appeal followed.
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, the Commission determines that the record in
this case contains insufficient evidence for us to determine whether
a breach of the instant agreement has occurred. We note, for example,
that the agency's letter of determination finding no breach is based on
complainant's request to reinstate the original complaint. However,
neither the determination nor the record contain any information or
evidence indicating that they fulfilled the obligation to provide mini
training under the terms of the settlement agreement. Given this lack
of evidence, we are unable to ascertain whether the agency complied with
the settlement agreement.
Accordingly, the agency's finding of no breach of the settlement agreement
is VACATED. The matter is REMANDED to the agency for further processing
in accordance with the ORDER below.
ORDER
The agency is ORDERED to take the following action:
The agency shall supplement the record with evidence clearly showing that
it has complied with the settlement agreement. The supplementation of
the record shall include documentation, such as affidavits from PM and/or
management officials, indicating that the agency was in compliance with
providing mini training as proscribed in the settlement agreement. Within
thirty (30) calendar days of the date this decision becomes final,
the agency shall issue a new decision concerning whether it breached
the April 14, 2008 settlement agreement.
A copy of the agency's letter of acknowledgment to complainant and a
copy of the notice that transmits the investigative file and notice of
rights 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
June 3, 2010
__________________
Date
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0120101026
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120101026