01a00935
02-15-2001
Andrew W. Harris, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.
Andrew W. Harris v. Department of Veterans Affairs
01A00935
February 15, 2001
.
Andrew W. Harris,
Complainant,
v.
Anthony J. Principi,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A00935
Agency No. 99-0081
DECISION
On August 2, 1999, complainant alleged breach of settlement agreements
dated April 16, 1999 and May 10, 1999. On October 6, 1999, the agency
issued a decision finding no breach of the agreements. Complainant
appealed to this Commission.<1>
The April 16, 1999 settlement (Settlement-1) provided, in relevant part,
that complainant would be referred for certain clerical positions, and
would be compensated for hours he would have worked under the work-study
program. The agreement also required complainant �to withdraw any and
all active discrimination complaints.�
The May 10, 1999 settlement agreement (Settlement-2) placed complainant
in a medical record clerk position, GS-3/4 target GS-4, at the Mike
Ocallagham Federal Hospital effective 7 June 1999. This agreement also
provided for withdrawal, and stated:
The complainant agrees that the conditions of this agreement and all
terms herein will be kept confidential and agrees not to disclose or
discuss the facts of the agreement with other employees.
Complainant raised a number of breach claims, including breach of the
confidentiality provision of Settlement-2. Complainant contends that it
is �widely known� that complainant received his appointment from an EEO
settlement agreement. Complainant argues that only Settlement-1 should
be in force. Complainant also argues that his withdrawal only applied
to his work-study claim, not other EEO complaints.
In its decision, the agency found that all of the complaints filed before
the settlement agreement was signed are no longer live. The agency also
found that the confidentiality provision only applied to complainant,
and not to the agency.
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 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).
If complainant did not wish to agree to the terms of Settlement-2,
he should not have signed it. Complainant has not alleged that he was
coerced into signing Settlement-2. Therefore, the Commission finds that
this agreement was valid. Further, if complainant intended the withdrawal
to apply to certain claims only, he should have negotiated for such terms.
From the terms of the agreement, it is clear complainant must withdraw
�any and all� pending complaints.
Even assuming that the agency breached the confidentiality provision
cited above, the Commission finds no remedy available to complainant.
To remedy claims of breach, the Commission may order the agency to
reinstate the underlying complaint(s), or to comply with the agreement.
See 29 C.F.R. � 1614.504(c). Complainant was terminated from the
agency on October 12, 1999, for reasons not related to the present
appeal. Therefore, the Commission cannot specifically enforce the
agreement by placing complainant in a position from which he has been
removed on separate grounds. Further, equity would not favor complainant
if we allowed him to reinstate his complaint, for he would be required
to repay any monies issued pursuant to the agreement. Accordingly,
the agency's finding is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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 15, 2001
__________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
__________________
Date
______________________________
1Complainant filed a prior appeal concerning breach, EEOC Appeal
No. 01996804. This appeal, filed August 23, 1999, was administratively
closed because it was premature.