Andrew M. Onderko, Complainant,v.Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionNov 23, 1999
01970592 (E.E.O.C. Nov. 23, 1999)

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.