Earl B. Dean, Complainant,v.Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionMar 31, 2000
01972259 (E.E.O.C. Mar. 31, 2000)

01972259

03-31-2000

Earl B. Dean, Complainant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.


Earl B. Dean v. Department of Veterans Affairs

01972259

March 31, 2000

Earl B. Dean, )

Complainant, )

)

v. ) Appeal No. 01972259

)

Togo D. West, Jr., )

Secretary, )

Department of Veterans Affairs, )

Agency. )

________________________________)

DECISION

On January 18, 1997, complainant filed a timely appeal with the Commission

for a determination concerning the agency's alleged failure to comply

with an August 14, 1996 settlement agreement (SA, or the agreement), and

to have his underlying EEO complaints reinstated at the point processing

ceased, which was at the EEOC hearing stage.<1> As a threshold matter,

we note a lack of clarity in the extensive record. We find, for example,

that the agency had issued a final decision (FAD) dated April 11, 1997,

denying it had breached the SA, months after complainant had filed his

initial appeal in this case. Complainant filed an additional appeal

from that FAD on May 3, 1997. However, we find the FAD to be untimely

and, therefore, to have no legal force and effect under the applicable

regulations we have set forth below. We also will not consider the

numerous post-appeal filings from complainant, including the May 3,

1997 appeal.

The SA at issue contained the following provisions, in pertinent part:

(1) The Agency affirms [complainant's] right, as part of the management

of the Nutrition and Food Service of the Philadelphia [PA] VA Medical

Center [VAMC], to participate in the interviewing and recommending

processes for selection of the WS and WG position vacancies under his

supervisory direction.

(2) The Agency affirms and recognizes [complainant's] right, as part of

management, to assign work to his subordinate employees.

(3) The Agency agreed to and has provided [complainant] with an [sic]

Standard Form 50 correcting his retirement system code from FERS to CSRS.

(4) The agency agrees to adjust [complainant's] job description to

include checking products under his supervision as part of his duties

and responsibilities.

(5) The agency affirms [complainant's] right, as part of management,

to be provided advice, guidance and assistance from the Human Resources

Management System [HRMS], in a supporting role.

Due to a lack of clarity in the record, which we noted earlier, we

briefly review the following applicable chronology. By correspondence

dated August 28, 1996, and addressed to the agency attorney who was

a signatory to the SA, complainant, who was Chief of Food Production

and Service, claimed without being more specific that the agency had

honored "none of the agreement." Complainant sought reinstatement of

his underlying EEO complaints, and declared, in relevant part, that

"[t]he Agreements [sic] were not sign [sic] in order to allow the agency

to take reprisals, threats, assist employees [and] build cases agents

[sic] me in back rooms[.]"

In correspondence dated October 7, 1996, to the agency's headquarters

in Washington, D.C., complainant alleged noncompliance as to all five

provisions, again without specifically identifying the substance of the

alleged breaches. Complainant, however, averred in pertinent part as

follows: "By the simple fact that management official [sic] is violating

the agreement, the actions of the agency official also constitutes [sic]

reprisal and intimidation[.]"

By letter dated October 15, 1996, the VAMC referenced, inter alia,

complainant's October 7, 1996 letter, supra, and advised complainant

of the person, in Washington, to whom he should address his claims of

noncompliance. By letter dated October 27, 1996, complainant contacted

that individual and, again, raised generalized claims of noncompliance

and requested that his complaints be reinstated.

Complainant alleged noncompliance again in a December 4, 1996

communication to the VAMC. He alleged, inter alia, that item (5) was

violated when a named person in HRMS failed to keep an appointment with

him in connection with a personnel issue. Complainant also advised the

agency that he was filing an appeal with the Commission.

By letter dated January 10, 1997, the agency responded to complainant's

request to reinstate his complaints. The agency advised complainant

that, inter alia, his claims lacked specificity sufficient to permit

an agency determination. The agency informed complainant he had to

resubmit a written request within 30 days of his receipt of the letter

or risk denial of his request. In its April 11, 1997 final decision,

which we referenced earlier, the agency averred that it had received

complainant's response to its January 10, 1997 request for further

information on January 18, 1997, which, as we have previously indicated,

is the date of complainant's appeal in this matter.

Complainant's appeal is not entirely clear either. The gravamen of his

appeal is that the agency has violated all five provisions of the SA and

has harassed and retaliated against him. With regard to provision (1),

complainant contends that his first-line supervisor (FLS)--the Acting

Chief of the Nutrition and Food Service--violates the SA on a "daily"

basis and, in effect, has told complainant the SA is not binding on her.

Complainant argues that her actions interfere with his providing support

to patients. Similarly, complainant alleges as to provision (2) that

FLS assigns work to his (complainant's) subordinates.

Complainant argues that the agency has violated provision (3) by not

correcting his retirement time and service. Complainant appears to

argue that the agency attempted the correction, but that it was not

done properly.

As to provision (4), complainant alleges that FLS has refused to give

him "the authority to approve orders, she have [sic] not given me the

production clerk to place my orders[.]" Complainant further claims

that FLS has not "given me the computer I need in order to approve

the orders, nor have [sic] [FLS] given me my job description back,

[sic] I am not allowed to approve orders before orders are being placed.

I am not allowed to supervise the employees under my supervision [because

of FLS]." Complainant argues that FLS converted his production clerk

to timekeeper, although complainant asserts the employee lacked the

skills to be a production clerk in the first place. Complainant claims

he wants his secretary to be production clerk.

With regard to provision (5), complainant argues that HRMS has not

been supportive. Complainant alleges that, inter alia, he has not been

included in discussions with the Director when complainant has initiated

personnel actions against his (complainant's) subordinates. Complainant

also claims that the agency favors the union over him and employees

are permitted to show him disrespect; he is discriminated against by not

being given supplies or not being allowed to meet with upper management or

with his own supervisors; and nonsupervisors are permitted to supervise

his subordinates. There appears to have been no response by the agency

to complainant's appeal.

64 Fed. Reg. 37,644, 37656 (1999) (to be codified and hereinafter

referred to as EEOC Regulation 29 C.F.R. � 1614.504(a)) provides that

any settlement agreement knowingly and voluntarily entered into to by the

parties shall be binding on both parties. That section further provides

that, if the complainant believes the agency has failed to comply with

the terms of a settlement agreement, the complainant shall notify the

Director of Equal Employment Opportunity of the alleged noncompliance

with the settlement agreement, in writing, "within 30 days of when the

complainant knew or should have known of the alleged noncompliance. The

complainant may request that the terms of the settlement agreement

be specifically implemented or, alternatively, that the complaint be

reinstated for further processing from the point processing ceased."

Further, in accordance with 29 C.F.R. �1614.504(b), a complainant may

file an appeal 35 days after serving notice of noncompliance on the

agency, but must file an appeal within 30 days of receiving the FAD.

The Commission may order reinstatement of the underlying complaint(s),

direct compliance, or require the production of additional evidence,

pursuant to 29 C.F.R. �1614.504(c). The latter regulation also mandates

that claims that subsequent acts of discrimination violate the SA must

be processed as separate complaints, and not as claims of breach of an SA.

Settlement agreements are contracts between the complainant and the

agency and it is the intent of the parties as expressed in the contract,

and not some unexpressed intention, that controls the contract's

construction. Eggleston v. Department of Veterans Affairs, EEOC Request

No. 05900795 (Aug. 23, 1990); In re Chicago & E.I. Ry. Co., 94 F.2d

296 (7th Cir. 1938). In addition, the Commission generally follows the

rule that if a 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. Montgomery Elevator

v. Building Eng'g Servs., 730 F.2d 377 (5th Cir. 1984). In Klein

v. Department of Housing and Urban Development, EEOC Request No. 05940033

(June 30, 1994), we stated we would not resort to extrinsic evidence,

outside the four corners of the agreement, to determine the meaning

of a writing which appeared to be facially plain and unambiguous.

However, in Wong v. USPS, EEOC Request No. 05931097 (April 29, 1994),

we stated that "where the terms of the document are ambiguous or for

equitable reasons, the Commission may go beyond the language of the

agreement and look at the intent of the parties to the agreement"

(citation omitted). In addition, the burden of proving an agency has

breached an agreement is on the complainant. Moore v. Department of

the Navy, EEOC Request No. 05930694 (April 7, 1994).

The Commission finds complainant's claims pertaining to provisions

(2) and (5) should be processed as a separate complaint, in accordance

with 29 C.F.R. �1614.504(c), rather than as claims of breach. Thus, we

refer complainant to EEO counseling if he wishes to pursue those claims

further. As to provisions (1), (3), and (4), the Commission finds the

record inadequate to determine whether the agency was in compliance

with those provisions. Accordingly, we direct the agency to conduct a

supplemental investigation as to provisions (1), (3), and (4).

However, we also find, with regard to claim (4), that the SA is silent

as to complainant's authority to order food. In this regard, we find

that, on April 5, 1995, well prior to the execution of the SA at issue,

complainant's second-line supervisor relieved him of the responsibility

for ordering food. That function was assigned to another employee.

If complainant wanted such duty reinstated, he should have ensured that

the SA contained a provision accordingly. To the extent complainant is

alleging FLS has interfered with his right to supervise complainant's

subordinates, as well as with the process of ordering food, we again

refer complainant for EEO counseling if he wishes to pursue those claims.

Having reviewed the entire record in this matter, the arguments on appeal,

including those not expressly addressed herein, and for the foregoing

reasons, the Commission declines to set aside the SA and direct the

reinstatement of complainant's underlying complaints. Instead, the

Commission directs the agency to conduct a supplemental investigation

and take other specified actions in compliance with the Commission's

ORDER set forth below.

ORDER

The agency is ORDERED to conduct a supplemental investigation to determine

whether it complied with provisions (1), (3), and (4) of the SA at issue.

The agency shall then issue a new final decision, with appeal rights to

the Commission, determining whether the agency was in compliance with the

SA or has become in compliance with the SA with regard to provisions (1),

(3), and (4). The new final decision shall cite to specific evidence

of compliance and, in addition to providing the new final decision,

the agency shall provide complainant and the Commission with true

copies of such evidence of compliance. Such evidence shall include,

but need not be limited to, true copies of relevant documents such as

position descriptions and Standard Form 50s; as well as statements,

given under oath or affirmation, from persons, including complainant,

who have first-hand knowledge of this matter. In this regard, complainant

shall cooperate with the agency and comply with reasonable requests for

information if and when necessary. All ORDERED agency actions, including

the completion of the supplemental investigation and the issuance of the

new final decision, shall be implemented within sixty (6O) calendar days

of the date the Commission's decision in this matter becomes final. True

copies of evidence of compliance, as well as the new final decision,

must be sent to the Compliance Officer as referenced below.

IMPLEMENTATION OF THE COMMISSION'S DECISION (K1199)

Compliance with the Commission's corrective action is mandatory.

The agency shall submit its compliance report within thirty (30)

calendar days of the completion of all ordered corrective action. The

report shall be submitted to the Compliance Officer, Office of Federal

Operations, Equal Employment Opportunity Commission, P.O. Box 19848,

Washington, D.C. 20036. The agency's report must contain supporting

documentation, and the agency must send a copy of all submissions to

the complainant. If the agency does not comply with the Commission's

order, the complainant may petition the Commission for enforcement

of the order. 29 C.F.R. �1614.503(a). The complainant also has

the right to file a civil action to enforce compliance with the

Commission's order prior to or following an administrative petition

for enforcement. See 64 Fed. Reg. 37,644, 37,659-60 (1999) (to be

codified and hereinafter referred to as 29 C.F.R. ��1614.407, 1614.408),

and 29 C.F.R. �1614.503(g). Alternatively, the complainant has the

right to file a civil action on the underlying complaint in accordance

with the paragraph below entitled "Right to File A Civil Action."

29 C.F.R. ��1614.407 and 1614.408. A civil action for enforcement or

a civil action on the underlying complaint is subject to the deadline

stated in 42 U.S.C. � 2000e-16(c)(Supp. V 1993). If the complainant

files a civil action, the administrative processing of the complaint,

including any petition for enforcement, will be terminated. See 64

Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred

to as 29 C.F.R. �1614.409).

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0300)

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 64

Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred

to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter

referred to as 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 (S1199)

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:

March 31, 2000

DATE Carlton M. Hadden, Acting Director

Office of Federal Operations

CERTIFICATION OF MAILING

For timeliness purposes, the Commission will presume that this decision

was received within five (5) calendar days of mailing. I certify that

the decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

____________________ __________________________________

DATE EQUAL EMPLOYMENT ASSISTANT

1 On 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 64 Fed. Reg. 37,644 (1999), where applicable,

in deciding the present appeal. The regulations, as amended, may also

be found at the Commission's website at WWW.EEOC.GOV.