01996175
04-23-2001
Bartha Moore, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.
Bartha Moore v. Veterans Affairs
01996175
April 23, 2001
.
Bartha Moore,
Complainant,
v.
Anthony J. Principi,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01996175
Agency Nos. 98-0062; 98-0291; 98-1244
DECISION
Complainant filed an appeal with this Commission from an agency decision,
issued on June 28, 1999, finding that it was in compliance with the
terms of the January 6, 1999 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:
[Complainant] agrees to a voluntary optional retirement effective December
31, 1999. In furtherance of this, [complainant] agrees to commit to
an irrevocable, unconditional retirement with an effective date of
December 31, 1999 and to execute contemporaneously with this Agreement
the applicable document(s) necessary to commit to such retirement and
authorizes the appropriate Agency officials to timely process same.
(2) The Agency agrees to remove all references in [complainant's]
Official Personnel Folder to the 12 calendar day suspension imposed
on him for the period July 8, 1996 through July 19, 1996. The Agency
also agrees that in regard to this 12 day suspension, measures will be
effectuated to withdraw this disciplinary action and to change those days
to an authorized absence. Further, any future employment recommendations
from the Agency will not reference in any manner the 12 day suspension.
. . .
[Complainant] agrees that if he breaches the confidentiality provisions
in Paragraph number 5 of this Agreement he will repay to the federal
Government the funds paid to him under Paragraph number 3 of this
Agreement.
The parties to this Agreement further stipulate that:
(a) The afore-stated terms constitute the entire agreement and
obligations between the Agency and [complainant] and this Agreement
settles and concludes all disputes, appeal, and any other legal,
personnel and administrative action, including Equal Employment
Opportunity and Merit Systems Protection Board complaints or appeal,
grievances, as well as litigation in any forum pertaining to any and
all matters arising on or before the date of execution of this Agreement.
(b) This Agreement shall be kept confidential and the terms shall
not be disclosed by either party except as follows:
to federal Governmental officials on a need to know basis responsible
for implementing the Agreement; and,
Paragraph number 5 of this Agreement together with its signatures may be
disclosed to the appropriate official of any federal governmental forum
where a dispute involving matters arising at or before the execution of
the Agreement is pending (or is subsequently brought or filed) solely
for the purpose of showing that an agreement resolving all such disputes
has been entered into by the parties.
By letter to the agency dated March 29, 1999, complainant alleged that
the agency breached the settlement agreement, and requested that his
complaints be reinstated. Specifically, complainant alleged that the
agency breached the confidentiality provision set forth in paragraph
5(b) of the agreement when the Systems Chief of Environmental Services
announced at a monthly staff meeting that complainant would be retiring
by December 31, 1999.
In its June 28, 1999 decision, the agency concluded that the
settlement agreement had not been breached. The agency determined
that while complainant's immediate supervisor announced complainant's
proposed retirement, he did not know about the settlement agreement.
Complainant's supervisor attested that he learned about the retirement
when complainant spoke with him about sick leave and stated that he was
leaving at the end of 1999. Moreover, the agency noted that additional
testimony established that the agreement was only disclosed to those
responsible for implementing the settlement.
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).
The record establishes that complainant's supervisor announced at a
monthly staff meeting that complainant would be retiring on December 31,
1999. A copy of the minutes from the February 10, 1999 meeting, reflects
the announcement. Further, in his affidavit, complainant's supervisor
admits making the statement. Complainant argues that the December 31,
1999 retirement date is a specific term of the settlement agreement
that was to be kept confidential and that the supervisor could only have
made such a statement after learning about the agreement. The Commission
finds, however, that the record does not support complainant's allegation.
According to the supervisor, he has never reviewed the agreement nor
discussed it with anyone. The supervisor attests that he was unaware
of the agreement terms and made the announcement based on information
complainant told him. Complainant purportedly mentioned the retirement,
but did not disclose that it was part of a confidential settlement.
The investigative report also includes an affidavit from the Systems
Chief of Human Resources, wherein he states that he has not discussed
the agreement with anyone except his senior specialist, in an effort to
implement the settlement. Therefore, while the retirement announcement
was made, the record does not demonstrate that the confidentiality clause,
paragraph 5(b), of the agreement was breached. Complainant has not
shown that the statement was made with the knowledge of the settlement
agreement and its specific terms.
Finally, we note that complainant raised for the first time on appeal
the alleged breach of paragraph 2 of the agreement. Specifically,
complainant claims that on November 26, 1999 he reviewed his Official
Personnel Folder (OPF) and discovered that the agency failed to
remove all references to a 12 day suspension imposed in July 1996.
Complainant has attached several documents, purportedly from his OPF,
referencing �Suspension 7/8/96 - 7/19/96". Complainant is advised that
if he wishes to pursue this additional allegation of non-compliance,
that he notify the EEO Director of this matter.
Accordingly, the agency's decision finding no breach was proper and is
hereby 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
April 23, 2001
__________________
Date