01985328
08-12-1999
Dan Sullivan, Appellant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.
Dan Sullivan v. Department of Veterans Affairs
01985328
August 12, 1999
Dan Sullivan, )
Appellant, )
)
v. ) Appeal No. 01985328
) Agency No. 97-1270
Togo D. West, Jr., )
Secretary, )
Department of Veterans )
Affairs, )
Agency. )
______________________________)
DECISION
On June 18, 1998, appellant filed a timely appeal with this Commission
from a final decision (FAD) by the agency dated June 9, 1998, finding that
it was in compliance with the terms of the November 12, 1996 settlement
agreement into which the parties entered. See 29 C.F.R. ��1614.402,
.504(b); EEOC Order No. 960, as amended.
The settlement agreement provided, in pertinent part, that:
(1) The [agency] agrees to:
(a.) Payment (sic) of a sum equal to the difference in [appellant']
grade and the pay of a GS-11/10 from the date of EEO counselor contact
(August 31, 1993) until November 8, 1996, without a corresponding
personnel action and without a finding of discrimination, which
is $52,300. (sic) in a lump sum. Payment will be made as soon as
possible after the effective date of resignation (January 1, 1997)
or sooner, at [appellant's] request, if [appellant] obtains other full
time employment; and
(2) [Appellant] agrees to:
(h.) To (sic) refrain from entering the [agency] premises for a
period of four (4) years from the date of the settlement agreement,
without written permission of the facility director (which will be up to
[appellant] to obtain prior to entering the facility), which permission
will not be unreasonably withheld; (Second and third parentheses in
original)
By letter to the agency dated March 12, 1998, appellant alleged that
the agency was in breach of the settlement agreement, and requested
that the agency specifically implement the its terms. Specifically,
appellant alleged that the agency unreasonably withheld permission for
him to enter the facility.
In its June 9, 1998 FAD, the agency concluded that it was not in breach of
the settlement agreement. The agency indicated that appellant resigned
from the agency on December 31, 1996. Additionally, the agency noted
that on February 3, 1997, appellant requested permission to meet with his
representative on a regular basis to discuss re-opening the EEO cases that
were settled in the November 12, 1996 agreement. The agency concluded
that although appellant's request was denied on February 6, 1997, pending
a breach of settlement determination, the denial was not unreasonable
since provisions were made for appellant and his representative to meet
with an EEO Counselor at a neutral site on March 19, 1997.
On appeal, appellant contends that the agency's failure to allow him
access to the facilities represents a separate incident of discrimination.
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).
Appellant, who resigned from his position within the agency effective
December 31, 1996, voluntarily signed the settlement agreement prohibiting
his entry into the agency's facilities without permission from the
facility director, where that permission would not be unreasonably
withheld. In the present case, we find that appellant was not
unreasonably denied entry into the facility. The only employment-related
occasion for which appellant sought entry was on February 3, 1997,
when he sought the opportunity to meet with his EEO representative.
Appellant was not denied this employment right because the agency
provided him the opportunity to meet with his EEO representative at a
neutral location. With regard to appellant's contention that he was
not permitted to enter the agency's facility for personal reasons, we
find that the agency's decision not to allow him entry is beyond the
scope of the agreement, as it does not relate to his employment with
the agency. Similarly, we find that appellant's allegations on appeal,
as they relate only to visits to the facility for personal reasons,
fall beyond the jurisdiction of EEOC Regulation 29 C.F.R. �1614.
Accordingly, the agency's decision is AFFIRMED for the reasons set forth
herein.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. In the alternative, you may file a
civil action AFTER ONE HUNDRED AND EIGHTY (180) CALENDAR DAYS of the date
you filed your complaint with the agency, or filed your appeal with the
Commission. 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. Filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1092)
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:
August 12, 1999
____________________________
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations