Annie M. Jones, Complainant,v.Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionMar 16, 2000
01993381 (E.E.O.C. Mar. 16, 2000)

01993381

03-16-2000

Annie M. Jones, Complainant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.


Annie M. Jones, )

Complainant, )

)

v. )

) Appeal No. 01993381

Togo D. West, Jr., ) Agency No. 93-2511

Secretary, )

Department of Veterans Affairs, )

Agency. )

______________________________)

DECISION

INTRODUCTION

Complainant filed a timely appeal with this Commission for a determination

regarding whether the agency violated the terms of a settlement agreement

which resolved an EEO complaint filed against the agency.<1> Accordingly,

we find that the appeal is timely (see 29 C.F.R. � 1614.401(d) and 64

Fed. Reg. 37,644, 37,660 (1999) (to be codified and hereinafter referred

to as 29 C.F.R. � 1614. 504(a) and (b))), and is accepted in accordance

with 64 Fed. Reg. 37,644, 37,659 (1999) (to be codified at 29 C.F.R. �

1614.405).

ISSUE PRESENTED

The issue on appeal is whether the agency violated the terms of its

settlement agreement with complainant.

BACKGROUND

The Commission, in Jones v. Department of Veterans Affairs, EEOC Appeal

No. 01961780 (September 24, 1998), found that the agency discriminated

against the complainant. As relief, the agency was order to inform

complainant that she was entitled to reassignment to her original position

in Special Chemistry, she had the right to submit evidence in support

of her claim for compensatory damages and to receive a final decision

on the issue, and that she was entitled to attorney's fees if she was

represented by an attorney.

On November 30, 1998, the agency requested that complainant's attorney,

B-1, provide documentation to support his fee request. According to the

agency, B-1 informed the agency that he disagreed with its request for

supporting documentation and demanded a copy of the regulations which

authorized the agency's request. B-1 also contacted the Commission

requesting assistance in obtaining compliance.<2>

On January 11, 1999, during a hearing on an unrelated case, complainant

agreed to settle the relief that was ordered by the Commission in EEOC

Appeal No. 01961780. Complainant agreed to accept $18,000.00 in payment

for attorney's fees and a lump sum payment of $30,000.00 compensatory

damages. Complainant further indicated that she did not want to be

reassigned to her original position in Special Chemistry.

On March 8, 1999, B-1 filed the present action with the Commission.

Although he erroneously termed this action a �Petition For Enforcement,�

complainant maintained that the agency had failed to comply with the

terms of the settlement agreement. Although the settlement agreement

did not specify a time period in which the agency had to comply with

its obligations, B-1, on appeal, stated �the normal total processing

time is about 30 days. Complainant should therefore have received her

check on or about February 11, 1999.� B-1 further stated that:

when the 30 days had elapsed I called the Agency and was told that the

settlement agreement had never been processed. In other words, it had

not gone to fiscal services for payment to be made. I also called the

Director's office and spoke with [an agency official] who told me to

fax [sic] him a copy of the settlement agreement and that my client,

the complainant, and I should receive payment in two weeks. On March 3,

1999, I again called the Agency to check on the status of the payment.

I learned on March 5, 1999, that the settlement agreement still had not

been processed. Fiscal services had received nothing that would allow

them to make payment.

B-1 maintained that �the action by the agency [was] deliberate and

malicious. At no point has anyone tried to process the settlement

agreement. The procedure is simple and merely requires the agreement

to be sent to the appropriate unit within VA for effectuating payment.�

Finally, B-1 stated that �if the agency had done what it was supposed to

do my client should have received her check by no latter than February

11, 1999,� or by March 5, 1999, if it began processing the matter on

February 16, 1999.

On July 15, 1999, the agency presented evidence that on March 23, 1999,

checks in the amount of $18,000.00 and $30,000.00 were issued to B-1

and complainant, respectively. A copy of the agency's letter was also

provided to B-1.

ANALYSIS AND FINDINGS

Settlement agreements are contracts between the complainant and the agency

to which ordinary rules of contract construction apply. 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 any resort to extrinsic

evidence of any nature. See Montgomery Elevator v. Building Engineering

Services, 730 F.2d 377 (5th Cir. 1984).

After a careful review of the record, we find that the agency did not

violate the terms of the settlement agreement. We note in this regard

that the settlement agreement did not provide a time frame in which

the agency had to issue the two checks. In such circumstances, the

Commission has held that performance of the contract is required within

a reasonable amount of time. See Gonzales v. Department of the Treasury,

EEOC Request No. 05930921 (February 10, 1994). We do not find, under the

facts presented here, that the agency took an unreasonable amount of time

to carry out its obligations. If B-1 felt that the agency should have

processed the payments within 30 days than he should have insured that

language to that effect was included in the settlement agreement.

CONCLUSION

Accordingly, the agency's determination that it did not breach the

terms of its settlement agreement with complainant was proper and it is

AFFIRMED.

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 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 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).

COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S1199)

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:

March 16, 2000

______________ __________________________________

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:

_____________________

_________________________________

Date

Equal Employment Assistant

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.

2See Compliance File No. 06982094.