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.