Ella M. Butler, Complainant,v.Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionDec 6, 1999
01990391 (E.E.O.C. Dec. 6, 1999)

01990391

12-06-1999

Ella M. Butler, Complainant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.


Ella M. Butler, )

Complainant, )

)

v. )

) Appeal No. 01990391

Togo D. West, Jr., ) Agency No. 96-0390

Secretary, )

Department of Veterans Affairs, )

Agency. )

____________________________________)

DECISION

On October 13, 1998, complainant filed a timely appeal with this

Commission from a final agency decision (FAD), dated September 23, 1998,

finding that it was in compliance with the terms of the February 12,

1996 settlement agreement into which the parties entered.<1> See 64

Fed. Reg. 37,644, 37,659, 37,660 (1999) (to be codified and hereinafter

referred to as EEOC Regulations 29 C.F.R. ��1614.402, .504(b)); EEOC

Order No. 960, as amended.

The settlement agreement provided, in pertinent part, that:

VA will engage Appellant as a contract investigator for EEO cases under

its Retired Annuitant Investigator Program, under the same conditions

as other participants in the program. (A description of the program

and conditions is attached hereto.) The program's current rate of

compensation is $140.00/day, plus travel expenses as allowable under the

Federal Travel Regulations. Appellant could work in all four regions.

Before being assigned any cases, Appellant will have to complete the

program's advanced training required of all program participants at her

own expense; the next training currently is planned for February/March,

1996. VA will advise Appellant of the specific dates for the training

as soon as practicable so that she can make the necessary arrangements.

After Appellant completes Part I of the training, VA will assign her one

case as Part II of her training. Provided she completes that training

assignment in a satisfactory manner, in terms of quality and timeliness,

VA will assign her cases in the same manner as assignments to the other

EEO Investigators. To continue as an EEO Investigator, she must meet

VA's requirements governing quality, timeliness, and completeness for

investigation reports and a neutral, professional demeanor in conducting

investigations, which are applicable to al EEO Investigators.

By letter to the agency dated July 24, 1998, complainant alleged that the

agency was in breach of the settlement agreement, and requested that the

agency specifically implement the its terms. Specifically, complainant

alleged that she received a letter indicating that her services as

an Investigator were no longer needed, while other Investigators were

retained.

On September 23, 1998, the agency issued a FAD finding no breach of the

settlement agreement. The agency determined that the settlement agreement

only provided that complainant would be given the opportunity to train for

and possibly participate in its Retired Annuitant Investigator Program.

It did not promise complainant �participation in the program for

perpetuity or for any guaranteed minimum term.� The agency determined

that when fewer Retired Annuitant Investigators were needed, those with

an evaluation score of less than 36.00 were eliminated from the program.

The agency further determined that complainant was treated as other

investigators in the program, and that therefore the settlement agreement

was not breached.

64 Fed. Reg. 37,644, 37,656 (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 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).

In the instant case, we find that the agency has complied with the terms

of the settlement agreement. The settlement states that complainant

would be given the opportunity to train for the program, and that if

she successfully completed training, she would be able to participate in

the program. The record reflects that, for over two years, complainant

served as a Retired Annuitant Investigator. The settlement agreement did

not provide that complainant would be given special consideration in the

case of a reduction of investigators. The record reveals that complainant

was treated as other participants in the program, and evaluated according

to her log score. Accordingly, the agency's decision finding no breach

of the settlement agreement was proper and is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M1199)

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). 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).

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:

Dec. 6, 1999

____________________________

DATE Carlton M. Hadden, Acting Director

Office of Federal Operations

CERTIFICATE 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

1On 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.