01a51105
03-29-2005
Anthony H. Horan, Complainant, v. R. James Nicholson, Secretary, Department of Veterans Affairs, Agency.
Anthony H. Horan v. Department of Veterans Affairs
01A51105
March 29, 2005
.
Anthony H. Horan,
Complainant,
v.
R. James Nicholson,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A51105
Agency Nos. 200O-0570-201120836 & 200O-0570-2001120519
DECISION
Complainant filed a timely appeal with this Commission from a final
decision (FAD) by the agency dated October 28, 2004, finding that it
had breached the terms of the February 11, 2002 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) Effective as of January 30, 2002, [the agency] . . . shall reflect,
and [complainant] shall have, those privileges held by [complainant]
as of January 8, 1996.
(2) [Complainant's] personnel file shall not reflect that his privileges
were reduced.
(3) Each party agrees to do all acts and things and to make, execute,
and deliver such written instruments as shall be reasonably necessary
to carry out the terms and provisions of this Agreement.
By an undated letter to the agency, complainant alleged that the agency
was in breach of the settlement agreement, and requested that the agency
specifically implement its terms. Complainant presented a copy of
correspondence dated June 16, 2003, received from Intermountain Health
Care (IHC), a separate medical facility, that stated �we have received
information from [the agency] that you had problems with privileges that
were restored upon [your] retirement� from the agency. Complainant did
not specifically state how this constituted a breach of the agreement.
In its October 28, 2004 FAD, the agency concluded that complainant's
breach allegation constituted of the following: by notifying IHC that
complainant had �problems with privileges,� the agency failed to comply
with the agreement's requirement to ensure that his personnel files did
not reflect that his privileges had been reduced. Having thus interpreted
complainant's allegation of breach, the agency further found that, while
most documents relating to the reduction of complainant's privileges
had been removed from his records, two documents remained. The agency
therefore concluded that it had breached the agreement. The agency
further found, however, that �because . . . , it is impossible to return
to the status quo ante, the only remedy is specific enforcement.� The
agency therefore directed the facility to comply with the agreement and
remove the relevant documents from complainant's file.
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 agency found that it had breached the agreement
and directed the facility to comply with its terms. Given such a finding,
the nature of complainant's appeal is unclear. In his appeal letter he
states that the FAD erroneously focuses on the portion of the agreement
addressing the change in his privileges and on the agency's failure to
fully purge his records. Complainant maintains that the correct focus
should be on the portion of the agreement that states that �each party
agrees to do all acts . . . as shall be reasonably necessary to carry
out the terms and provisions of this Agreement.�
The relevance of such a distinction, however, is far from clear. It was
because IHC subsequently learned of the initial change in privileges
that complainant came to believe that the agreement had been breached.
As complainant has not fully explained why he feels that IHC's knowledge
of the past change in his privilege status constitutes a breach of the
agreement, the agency quite reasonably inferred that he was alleging that
the breach constituted of the agency's failure to update his records,
thus causing IHC to learn of the privilege change. While the agency
might also have inferred that notifying IHC of the privilege change
amounted to a breach of the agreement term stating that �each party
agrees to do all acts . . . as shall be reasonably necessary to carry out
the terms and provisions of this Agreement,� complainant has not shown
how such an interpretation of his claim makes a material difference.
The simple fact remains that complainant claimed breach based on IHC's
learning of complainant's privilege change, and the FAD agreed with his
breach allegation.
We note that the FAD notified complainant of his right to file a new
complaint if he feels that the agency provided IHC a negative reference in
retaliation for filing an EEO Complaint, and further notified complainant
that such a complaint would be treated as a separate complaint. See Id.,
p. 5. The agency further provided evidence showing that it has now
complied with the terms of the agreement by removing the offending
records from his files.
In conclusion, we find that the agency correctly found that the settlement
agreement was breached.
We therefore AFFIRM the FAD, noting that the agency has already complied.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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
March 29, 2005
__________________
Date