0120132154
09-13-2013
Donald Hardnet, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Donald Hardnet,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120132154
Agency No. 200306712012103782
DECISION
Complainant filed a timely appeal with this Commission from a final decision (FAD) by the Agency dated April 19, 2013, finding that it was in compliance with the terms of the 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Registered Respiratory Therapist at the Agency's Audie L. Murphy Medical Center in San Antonio, Texas.
Believing that the Agency subjected him to unlawful discrimination, Complainant contacted an Agency EEO Counselor to initiate the EEO complaint process. On October 22, 2012, Complainant and the Agency entered into a settlement agreement to resolve the matter. The settlement agreement provided, in pertinent part, that the Agency would:
. . . send original package from 2007 back to the Professional Standard Board (PSB) to review original application package to verify step of [Complainant]. Assistant Human Resources Officer will copy application and other documents submitted by [Complainant] at the time of employment from [Complainant's] OPF. [Complainant] will be given the opportunity to review application package prior to sending package to VISN PSB. [Complainant's] board package will be submitted to the VISN PSB within 30 days of the date of agreement. If after VISN PSB review it is determined that [Complainant] should have been boarded at a higher step corrections will be made to initial appointment date with retroactive pay.
On February 7, 2013, Complainant alleged that the Agency was in breach of the settlement agreement, and requested that the Agency implement its terms. Specifically, Complainant alleged that although he reviewed the documents to be sent, he was unaware there were other documents required or missing. Complainant stated, "the Board noted that original board package was incomplete and confusing."
In its April 19, 2013 FAD, the Agency concluded it was not in breach of the agreement. The Agency noted its obligation was to send the original 2007 package for review to verify that Complainant had received the correct step with respect to his pay. The Agency provided a statement from the Assistant Chief, Human Resources Management, who explained that Complainant reviewed the package prior to its being sent to VISN PSB. The package was sent on November 28, 2012, requesting review of the original 2007 package. The Board found that Complainant was given the proper step and grade. Complainant received notice of such on February 7, 2013. The Agency noted that there was confusion in that the Board responded on December 6, 2012. However, the Agency noted there was no specific time frame for completion of the Board action in the settlement agreement.
The instant appeal followed.
ANALYSIS
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. Dep't of Def., 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. Dep't 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. U.S. Postal Serv., 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 settlement agreement required the Agency to submit the original 2007 Board package for review by the VISN PSB to determine the correctness of the original determination of Complainant's salary step. In addition, Complainant was allowed to review the package before it was sent. Given the circumstances, we find that the Agency has not breached the agreement. Complainant admits the 2007 package was sent as required, and that he had the opportunity to review the package. While Complainant now argues that the 2007 package was incomplete, he does not dispute the Agency's that all the original documents were sent to the Board. The agreement did not indicate that Complainant could supplement the original package - the agreement simply provided that the Board would review its original decision with the original package.
Accordingly the Agency's decision finding no breach of the agreement is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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 77960, Washington, DC 20013. 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 (S0610)
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 (Z0610)
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 from the Court that the Court appoint an attorney to represent you and that the Court also 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 with the Court 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
September 13, 2013
__________________
Date
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0120132154
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120132154