01980333_r
12-01-1999
Ella M. Francisco, Complainant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.
Ella M. Francisco, )
Complainant, )
)
v. ) Appeal No. 01980333
Togo D. West, Jr., )
Secretary, )
Department of Veterans Affairs, )
Agency. )
____________________________________)
DECISION
On October 16, 1997, complainant filed a timely appeal with this
Commission from a final agency decision (FAD) received by complainant
on September 23, 1997, finding that it was in compliance with the terms
of the September 5, 1995 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 the agency
would:
(a) detail the complainant to Recreation Therapy Service effective
September 5, 1995, to work as a Contract Specialist, GS-9;
(b) permanently reassign complainant within 120 days of the effective
date of this agreement to a position outside of Acquisition & Materiel
Management Service (A & MMS) at the same grade and pay that complainant
is currently receiving;
(e) provide the complainant with a fair and equitable environment free
from harassment and any discrimination based on race, color, religion,
sex, national origin, age, disability or reprisal for filing these
complaints.
Due to a Reduction-In-Force, the agency offered complainant a change
to the lower graded position of Claims Clerk (GS-5) on May 27, 1997.
The agency then amended that offer on May 30, 1997, and offered
complainant a Secretary position at the GS-6 level in the Audiology &
Speech Pathology Service. Although complainant accepted this position,
it was later rescinded. By a July 30, 1997 letter, the agency then
offered complainant the option of working as a Supply Technician (GS-7)
in the A & MMS division or a Secretary position (GS-6) in the Audiology
& Speech Pathology Service. Complainant rejected the Supply Technician
position which would have forced her to work under the supervisor who she
claimed had harassed her. Complainant accepted the Secretary position,
which appointment was to go into effect August 2, 1997.
By letter to the agency dated August 14, 1997, complainant alleged that
the agency was in breach of the settlement agreement, and requested that
the agency specifically implement its terms. Specifically, complainant
requested that the agency restore her to the position of Recreation
Therapy Assistant (GS 636-9).
In its FAD, received by complainant on September 23, 1997, the agency
concluded that complainant had been reassigned to a position as a Contract
Specialist (GS-9) outside of Acquisition & Materiel Management Service
at the same grade and pay she had been receiving and it was therefore
in compliance with the terms of the settlement agreement.
On appeal, complainant argues that the agency never complied with the
terms of the settlement agreement since she was never actually placed
outside the Acquisition and Materiel Management Service as promised
by the agreement. The complainant also states that computer generated
documents contained in her personnel file had been corrected manually
by a typewriter to attempt to show that she was transferred out of A &
MMS when in fact she was not.
According to 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)) 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 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 addition, 29 C.F.R. �1614.504(c) provides, in pertinent part, that
�[p]rior to rendering its determination, the Commission may request that
the parties submit whatever additional information or documentation it
deems necessary or may direct that an investigation or hearing on the
matter be conducted.�
In the present case, the Commission is unable to determine whether the
agency has complied with the terms of the settlement agreement due to a
lack of relevant evidence. While the agency claims that complainant had
been reassigned to a position outside of A&MMS at the same grade and pay
she had been receiving prior to the settlement agreement, it provides
no evidence to show that this was accomplished within 120 days of the
effective date of the agreement. In fact, complainant alleges she was
never actually placed outside the A&MMS as promised by the agreement.
Since the agency failed to provide in the record, any information for the
period between the effective date of the settlement of the agreement,
September 6, 1995 and March 31, 1996, the Commission is unable to
determine whether the terms of the agreement were met. Accordingly,
the Commission will set aside the FAD and remand this matter for a
supplemental investigation.
For the foregoing reasons, the Commission hereby VACATES the final agency
determination that the agency complied with the settlement agreement at
issue and REMANDS this matter for further proceedings consistent with
this decision and applicable regulations. The agency is hereby directed
to comply with the Commission's ORDER set forth below.
ORDER
The agency is ORDERED to take the following actions:
Conduct a supplemental investigation regarding complainant's claims of
breach and supplement the record with evidence documenting complainant's
reassignment, as well as any other information/evidence pertaining to
the breach claims;
Issue a new final agency decision addressing complainant's breach claims
within thirty (30) calendar days of the date this decision becomes final.
A copy of the agency's 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 (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 (R0993)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court. 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:
December 1, 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 Assistant1On 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.