01970592
11-23-1999
Andrew M. Onderko, Complainant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.
Andrew M. Onderko, )
Complainant, )
)
v. ) Appeal No. 01970592
) Agency No. VA 96-1664
Togo D. West, Jr., )
Secretary, )
Department of Veterans )
Affairs, )
Agency. )
)
DECISION
Complainant filed the instant appeal with the Commission alleging that
the agency had breached the settlement agreement entered into by the
parties.<1>
Complainant and the agency entered into a settlement agreement on July
26, 1996 in which complainant agreed to withdraw his EEO complaint and
the agency agreed in pertinent part to:
"Pay the special contribution award in the amount of $3000 with back
interest in the amount of $420.75."
Complainant alleged that the agency breached the settlement agreement by
failing to pay back interest on his contribution award through the date
of payment. Complainant contends that he signed the agreement with the
understanding that the back interest amount would be computed through
the date payment was made.
In a letter to complainant, the agency explained that the agreement
between the parties specified $420.75 in back interest to be paid to him.
The agency further indicated that the agreement did not provide a specific
time frame for payment. The agency maintains that it complied with the
provisions of the agreement by paying complainant the required amount of
back pay within a reasonable time. Specifically, the agency indicates
that the agreement was executed by the parties on July 16, 1996 and that
appellant received payment in the amount of $420.75 pursuant to a Public
Voucher for Refunds dated August 9, 1996.
In 64 Fed. Reg. 37,644, 37,660 (1999)(to be codified at and hereinafter
referred to as 29 C.F.R. �1614.504), the regulations provide that any
settlement agreement knowingly and voluntarily agreed to by the parties
shall be binding on both parties. If the complainant believes that the
agency has failed to comply with the terms of a settlement agreement,
then the complainant shall notify the EEO Director of the alleged
noncompliance. See 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.
Settlement agreements are contracts between the complainant and the
agency and it is the intent of the parties as expressed in the contract,
and not some unexpressed intention, that controls the contract's
construction. Eggleston v. Department of Veterans Affairs, EEOC Request
No. 05900795 (August 23, 1990); In re Chicago & E.I. Ry. Co., 94 F.2d
296 (7th Cir. 1938). 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. USPS, EEOC Request No. 05931097 (April 29, 1994)(citing Hyon
v. USPS, 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, complainant alleges that the agency failed to comply
with a portion of the settlement agreement, when he did not receive
back interest on his contribution award through the date of payment.
The Commission determines that the agency complied with the disputed
provision of the settlement agreement. The record indicates that pursuant
to a Public Voucher for Refunds dated August 9, 1996, complainant received
payment in the amount of $3,420.75 including back interest as stipulated
in the July 16, 1996 agreement.
Complainant argues that he signed the agreement with the understanding
that back interest would be calculated through the date of payment.
To the extent that appellant wanted the agreement to provide for payment
of back interest under those terms, that requirement should have been
reduced to writing as part of the settlement agreement. See Jenkins-Nye
v. General Services Administration, EEOC Appeal No. 01851903 (March 4,
1987). We are not persuaded by complainant's bare assertions on appeal
that he received telephone calls from agency officials promising that
back interest would be paid through the date of payment. The agency's
decision in this matter was proper. Accordingly, the agency's decision
that it did not breach the settlement agreement is hereby AFFIRMED for
the reasons set forth herein.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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
64 Fed. Reg. 37,644 37, 659 (1999)(to be codified at and hereinafter
referred to as 29 C.F.R. �1614.405). 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 64 Fed. Reg. 37,
644, 37,661 (1999)(to be codified at and hereinafter referred to as 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).
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:
November 23, 1999
DATE Carlton
M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's' representative
(if applicable), and the agency on:
1On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
Federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at WWW.EEOC.GOV.