Esther J. Buck, Complainant,v.Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionFeb 22, 2001
01a05803 (E.E.O.C. Feb. 22, 2001)

01a05803

02-22-2001

Esther J. Buck, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.


Esther J. Buck v. Department of Veterans Affairs

01A05803

02-22-01

.

Esther J. Buck,

Complainant,

v.

Anthony J. Principi,

Secretary,

Department of Veterans Affairs,

Agency.

Appeal No. 01A05803

DECISION

Complainant filed a timely appeal with this Commission for a determination

regarding whether the agency violated the terms of a settlement agreement

which resolved an EEO complaint filed against the agency.<1> We find

that the appeal is timely (see 29 C.F.R. � 1614.401(d) and 29 C.F.R. �

1614. 504(a) and (b)), and is accepted in accordance with 29 C.F.R. �

1614.405.

ISSUE PRESENTED

The issue on appeal is whether the agency violated the terms of its

settlement agreement with complainant.

BACKGROUND

Complainant and the agency entered into a settlement agreement on June

4, 1999. Among other things, the parties agreed that management would

reassign complainant to:

Surgical Service as a GS-6 Program Support Assistant, effective June 20,

1999.

There is no dispute that complainant was in fact reassigned to the above

position in June 1999. The claim of breach arose after complainant was

subsequently detailed to an Agent Cashier position. Complainant was

informed of the detail in March 2000, but, based on the advice of her

former EEO counselor, she did not allege that the June 4, 1999 settlement

agreement had been breached until May 12, 2000, after she reported for

the detail. On July 7, 2000, the agency issued a decision that dismissed

complainant's allegation of breach on the grounds that it was not raised

in a timely manner. This appeal followed.

ANALYSIS AND FINDINGS

Settlement agreements are contracts between the complainant and the agency

to which ordinary rules of contract construction apply. 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 any resort to extrinsic

evidence of any nature. See Montgomery Elevator v. Building Engineering

Services, 730 F.2d 377 (5th Cir. 1984).

The record indicates that complainant was reassigned to Surgical Service

as agreed. There was no provision in the settlement agreement that

prohibited the agency from subsequently detailing complainant to other

duties. Complainant has not alleged, nor does the record indicate,

that she is no longer a member of the Surgical Service Division.

She was merely detailed, temporarily, to other duties. Therefore,

we do not find that the agency violated the terms of the settlement

agreement. If complainant believes that her detail was discriminatory,

her remedy is to seek EEO counseling on the matter. EEOC Regulation

29 C.F.R. � 1614.504(c) provides that allegations that subsequent acts

of discrimination violate a settlement agreement shall be processed

as separate complaints under � 1614.106 or � 1614.204, as appropriate,

rather than under this section.<2>

CONCLUSION

Accordingly, the agency's determination that it did not breach the

terms of its settlement agreement with complainant was proper and it is

AFFIRMED.<3>

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0900)

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 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 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 (S0900)

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:

______________________________

Carlton M. Hadden, Director

Office of Federal Operations

______02-22-01________________________

Date

CERTIFICATE OF MAILING

For timeliness purposes, the Commission will presume that this decision

was received within five (5) calendar days after it was mailed. I certify

that this decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

______________________________

Date

______________________________

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 29 C.F.R. Part 1614 in deciding the

present appeal. The regulations, as amended, may also be found at the

Commission's website at www.eeoc.gov.

2Complainant is advised that if she wishes to pursue, through the EEO

process, this claim, she shall initiate contact with an EEO counselor

within 15 days after she receives this decision. The Commission

advises the agency that if complainant seeks EEO counseling regarding

her detail within the above 15 day period, the date complainant raised

her breach claim, May 12, 2000, shall be deemed to be the date of initial

EEO contact, unless she previously contacted a counselor regarding this

matter, in which case the earlier date should serve as the EEO counselor

contact date. Cf. Alexander J. Qatsha v. Department of the Navy, EEOC

Request No. 05970201 (January 16, 1998).

3Because of our decision above, we will not address the issue of whether

complainant raised her allegation of breach in a timely manner.