Anthony Palmerv.Department of Veterans Affairs 01A01820 October 13, 2000 . Anthony Palmer, Complainant, v. Hershel W. Gober, Acting Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionOct 13, 2000
01a01820 (E.E.O.C. Oct. 13, 2000)

01a01820

10-13-2000

Anthony Palmer v. Department of Veterans Affairs 01A01820 October 13, 2000 . Anthony Palmer, Complainant, v. Hershel W. Gober, Acting Secretary, Department of Veterans Affairs, Agency.


Anthony Palmer v. Department of Veterans Affairs

01A01820

October 13, 2000

.

Anthony Palmer,

Complainant,

v.

Hershel W. Gober,

Acting Secretary,

Department of Veterans Affairs,

Agency.

Appeal No. 01A01820

Agency Nos. P586138, P586147

DECISION

Complainant filed a timely appeal with this Commission from a final

decision by the agency dated December 1, 1999, finding that it had not

breached the terms of the March 27, 1998 settlement agreement into which

the parties entered.<1>

The settlement agreement provided, in pertinent part, that:

2. Medical Administration Service agrees that [complainant] be given

priority consideration for a two-year period (3/27/98-3/27/2000) for

promotion potential positions within Medical Administration Service.

3. The Department of Veterans Affairs agrees to provide [complainant]

with the opportunity to work on special projects in the Patient Relations

Office up to 8 hours per project at times/days as agreed upon by the

Senior Patient Representative and Chief, Medical Administration Service.

4. [The Associate Director] agrees to work with [complainant] to

review options for progressing within the VA system and will assist

him in determining what preparation will be required for [complainant]

to pursue those options.

The record indicates that on June 30, 1998, complainant first made a

general claim of breach of the settlement agreement. After the matter

remained on hold for nearly a year, complainant, in a letter to the agency

dated June 4, 1999, more specifically alleged that the agency was in

breach of the agreement as �only item 1 [of four] has been completed.�

In its December 1, 1999 decision, the agency concluded that contrary to

complainant's claims, it had not breached provisions (2) through (4) of

the settlement agreement. The agency determined that, for provision (2),

there were nine positions announced from April 30, 1998 through August 6,

1999, for which complainant was qualified, and that he only applied for

one position. The decision stated that although complainant was referred

for the one position, Medical Administration Service was required to

abolish five positions, and one of the displaced employees was reassigned

to the position resulting in complainant's non-selection. For provision

(3), the agency found that on April 21, 1998, a special project requiring

that complainant provide information and assistance to a patient was

referred to complainant by telephone and that he agreed to follow-up.

The decision reported the referring Senior Patient Representative as

stating that since complainant never followed through on the assignment

and did not indicate any problems to her, she made no further assignments,

and that she cited concerns over complainant's lack of �insight� on

accountability and personal responsibility. The agency also noted that

complainant changed jobs from Medical Administration Service to Human

Resources Management Service (HRMS). Concerning provision (4), the agency

determined that the Associate Director set up scheduled meetings with

complainant on the fourth Monday of every month, but that complainant

failed to meet 75% of the time. Additionally, the agency stated that

the Chief of Medical Administration Service met with complainant to

provide one-on-one training and offered to review complainant's efforts,

but complainant did not seek further assistance from her.

On appeal, complainant claims that he did apply for two Patient Service

Assistant positions, but states that, �after [the displaced employee]

was lateraled to the position there were no announcements until after

I was transferred.� For provision (3), complainant asserts that the

request made of him was not a �special project,� and that the provision

that he be given the opportunity to work in the Patient Relations Office

has never been �honored or satisfied.� Regarding provision (4), however,

complainant states that �the meetings that I had with [the Associate

Director] were very helpful to me and . . . he alone has been faithfully

trying to implement this agreement,� and �has truly acted in good faith.�

In response, the agency submits supporting documents outlining the

positions complainant potentially qualified for and those for which he

applied from the date of the agreement until the end of September 1999,

as well as an internal memorandum evidencing his priority consideration.

The agency also provides a June 6, 1998 memorandum from the Senior Patient

Representative to the Chief of Medical Administration Service, detailing

the assignment of a special project to complainant and his response,

and indicating her reservations concerning, but willingness to discuss,

future assignments.

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 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, we find that complainant has failed to show that the

agency breached the settlement agreement. First, with regard to provision

(2) of the agreement, complainant has not provided any evidence that the

agency failed to give him priority consideration for positions for which

he applied. Although complainant asserts he applied for two Patient

Service Assistant positions, the record shows that complainant was given

priority consideration for the one Patient Service Assistant position he

applied for before he admittedly transferred to HRMS. As the agreement

does not state that complainant must be given priority consideration for

all positions during the two year period, complainant has not shown how

the agency has breached provision (2) of the agreement.

With respect to provision (3), complainant has similarly failed

to show breach of the agreement. The settlement agreement required

that the agency provide complainant the opportunity to work on special

projects in the Patient Relations Office for up to 8 hours per project.

The record indicates that the Patient Relations Office assigned a

�special project� to complainant in April 1998, but that no further

assignments were given after he did not follow through on the project.

Even though complainant asserts that his assignment was not a �special

project,� the record indicates that the assignment was given from the

Patient Relations Office and took complainant out of his normal course of

duties to contact and provide information to a patient. Absent a specific

definition in the agreement stating what constitutes a �special project,�

we find that complainant was given the opportunity to work on a special

project in the Patient Relations Office as specified in the agreement.

Additionally, provision (3) did not include any specific time-frames

for assignment of special projects to complainant. Therefore, the

lack of any additional special projects from the date of the first

assignment until his transfer to HRMS does not breach the agreement.

We note that, as provision (3) required the concurrence of the Senior

Patient Representative and the Chief of Medical Administration Service,

complainant's transfer to another Service outside of their authority

effectively ended the responsibility to assign special projects under the

agreement. We also note that although the Senior Patient Representative

had reservations about assigning new special projects to complainant,

there is no indication in the record that a decision was ever reached

that complainant would receive no future projects.

Finally, we find that complainant's statements on appeal indicate that,

despite his earlier claims, he no longer is asserting breach concerning

provision (4) of the agreement. Complainant's statements show that

he was pleased with the assistance of the Associate Director under

the agreement, and that the Associate Director acted in good faith to

implement the specific provision.

Accordingly, for the reasons set forth herein, the agency's decision

finding that the settlement agreement had not been breached 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

October 13, 2000

__________________

Date

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 29 C.F.R. Part 1614 in deciding the

present appeal. The regulations, as amended, may also be found at the

Commission's website at www.eeoc.gov.