0120083981
02-12-2009
Edward Viglione, Complainant, v. Dr. James B. Peake, Secretary, Department of Veterans Affairs, Agency.
Edward Viglione,
Complainant,
v.
Dr. James B. Peake,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120083981
Agency No. 200H-0689-2007101712
DECISION
Complainant filed a timely appeal with this Commission from a final agency
decision dated August 19, 2008, finding that the agency was in compliance
with the terms of the May 17, 2007 settlement agreement into which the
parties entered. See 29 C.F.R. �� 1614.402; .405; and .504(b).
The settlement agreement provided, in pertinent part, that:
(2) The Agency shall:
Give the complainant priority consideration for any and all
vacancy announcements for positions in Police & Security
Service at the GS-7 level that are applied and qualified for
at the VA Connecticut Healthcare System through April 30, 2010.
The complainant is hereby informed that priority consideration
in no way guarantees selection by the selecting official.
By letter to the agency dated July 8, 2008, complainant alleged that
the agency was in breach of the settlement agreement. Specifically,
complainant alleged that the agency subjected him to uncommon and
superficial interviews, and failed to give him bona fide priority
consideration because it did not consider him on his own merit without
comparison to other candidates. Further, complainant alleged that
the agency denied a lateral transfer request from him and a peer at a
different facility. Complainant alleged that the actions were taken
based on his age (over 40) and in reprisal for prior EEO activity.
In its August 19, 2008 final decision, the agency concluded that it did
not breach the May 17 agreement. Specifically, the agency stated that
complainant received priority consideration here because, as complainant
acknowledged and the union collective bargaining agreement set forth,
his name was submitted to the selecting official and he was interviewed
and considered prior to the release of the vacancy announcement to the
general population. The agency noted, however, that the settlement
agreement does not define the process for priority consideration and
contract interpretation does not require resorting to external evidence.
Further, the agency stated that Human Resources chose not to contact
complainant to inform him of his non-selection until the entire selection
process, including that for the general population, was completed.
Lastly, the agency noted that complainant's allegations of reprisal fall
under claims of subsequent acts of discrimination rather than breach.
The instant appeal from complainant followed.
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 O 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).
We agree with the agency and find that, based on "the plain meaning
rule," complainant has failed to establish that the agency breached the
agreement here. Further, we find that complainant is really grieving his
non-selection and the denial of his transfer request and that such are
new and separate claims of discrimination. Thus, complainant is advised
to contact an EEO Counselor if he wishes to pursue these matters through
the EEO process. We AFFIRM the final agency decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 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 (S0408)
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 (Z1008)
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
February 12, 2009
__________________
Date
2
0120083981
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
4
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