01995908
07-10-2000
Hassan I. Ali, Complainant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.
Hassan I. Ali, )
Complainant, )
)
v. ) Appeal Nos. 01995908
) 01A00729
Togo D. West, Jr., ) Agency Nos. 96-1708
Secretary, ) 96-1710
Department of Veterans Affairs, ) 97-1135
Agency. ) 97-0880
____________________________________)
DECISION
Complainant and the agency entered into a settlement agreement on
January 19, 1995. Complainant alleged breach of the agreement, and
appealed the agency's subsequent denial of breach to this Commission.
See Ali v. Department of Veterans Affairs, EEOC Appeal No. 01971387
(February 4, 1999). Since the record did not include a signed copy
of the settlement agreement, the Commission remanded the claim for the
agency to �supplement the record with a copy of the entire settlement
agreement at issue.� See id. On April 15, 1999, the agency issued a
new final decision finding no breach of the January 19, 1995 agreement.
In its decision, the agency admitted its inability to find a complete
copy of the January 19, 1995 agreement, but found it was superceded by
a subsequent settlement agreement signed on June 26, 1997. Complainant
appealed on July 16, 1999 (EEOC Appeal No. 01995908), arguing that both
agreements had been breached.<1> The Commission accepts the appeal
for review.<2> See 64 Fed. Reg. 37,644, 37,659, 37,660 (1999)(to be
codified and hereinafter referred to as EEOC Regulation 29 C.F.R. �
1614.402); 29 C.F.R. � 1614.504(b); and 64 Fed. Reg. 37,644, 37,659
(1999)(to be codified at 29 C.F.R. � 1614.405).
On July 1, 1999, complainant notified the agency that the June 26,
1997 settlement agreement had been breached. The agency issued a
decision on October 18, 1999, finding no breach of the agreement.
Complainant appealed this decision to the Commission on October 27, 1999
(EEOC Appeal No. 01A00729).
EEOC Regulations allow the Commission to consolidate two or more
complaints filed by the same complainant. See 64 Fed. Reg. 37,644, 37,661
(1999) (to be codified and hereinafter cited as 29 C.F.R. � 1614.606).
Consolidation is encouraged to avoid the fragmentation of claims,
and to use Commission resources more efficiently. See generally Equal
Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO
MD-110), ch.5, sec. III (November 9, 1999). Therefore, the Commission
consolidates Appeal Nos. 01995908 and 01A00729 in the present decision.
The June 26, 1997 settlement agreement provided, in pertinent part, that:
Complainant shall withdraw, waive or forego all pending, unresolved
claims of discrimination . . . .
The Complainant agrees to withdraw the above-identified complaints in
their entirety [210-97-6111X, 210-97-6112X, 96-1708, 96-1710, 97-1135,
97-0880]. . . .
The [agency] agrees:
That Facilities Management Service will prepare a standard form 52
(Request for Personnel Action) in order for Human Resources Management
Service (HRMS) to process the complainant's request to retire effective
June 30, 1997, which he submitted to HRMS on May 23, 1997.
[P]ay [complainant], the sum of $25,000, less deductions that are
required by law, within 30 calendar days of the effective date of his
retirement.
Expunge any and all records of adverse personnel actions . . . .
Further, any inquiries to HRMS concerning Complainant's employment
shall reflect information regarding his salary, position (supervisor),
years of employment and reason for leaving (retirement).
The record still does not contain a complete, signed copy of the January
19, 1995 agreement.
In both claims of breach, complainant contended that the January 19, 1995
breach claim was not preempted by the June 26, 1997 settlement agreement.
He noted that the June 26, 1997 settlement does not expressly reference
the January 19, 1995 agreement (or its underlying claims). Therefore,
he argues, the breach claims from the January 19, 1995 agreement should
be processed.
Complainant also argued that the agency tricked complainant into giving
up his rights by failing to mention the January 19, 1995 settlement in the
subsequent agreement. He asserted that since the June 26, 1997 agreement
provides for the withdrawal of the �above-identified complaints,� but
fails to identify the January 19, 1995 agreement, he should be allowed to
proceed with that matter. Further, complainant contended that the agency
computed his service time incorrectly, causing him to receive less money
per month in retirement benefits. Considering all of his contentions
together, complainant argues that the agency failed to bargain in good
faith. Complainant also asserted that the June 26, 1997 agreement was
not valid because he was coerced to sign it by threats of termination.
In its October 18, 1999 FAD, the agency concluded that the June 26,
1997 agreement explicitly superceded the earlier agreement. Further,
the agency found no evidence of coercion, noting that complainant's
termination was proposed five months prior to the beginning of settlement
negotiations. According to the agency, complainant filed a complaint
concerning his termination, and had the option to sign the agreement,
or proceed with his complaint and possibly be terminated. The agency
also found no evidence of bad faith, noting that the settlement agreement
did not address complainant's creditable service or annuity payments.
The agency suggested that complainant raise his retirement benefit
concerns with HRMS or the Office of Personnel Management.
On appeal, complainant reiterates that he has not waived his right
to appeal the claim of breach from the January 19, 1995 settlement.
He argues that since it involved a claim of breach, and not a complaint
of discrimination, it was not waived by the language of the settlement
agreement. Further, he contends that if he had known the June 26, 1997
settlement was intended to terminate his rights under the January 19,
1995 agreement, he would not have signed the 1997 agreement. Complainant
also argued that he was on medication at the time he signed the June 26,
1997 agreement, and decided to take retirement since he was faced with
possible termination while in an altered state.
Concerning computation of benefits, complainant asserts that he contacted
the HRMS office, and was informed �they compute what the department
managers give to them.� According to complainant, he was terminated
in 1980 for discriminatory reasons, was reinstated in 1986, and should
receive credit for the time spent fighting the illegal termination.
He argues that the agency should not consider that he �quit� in 1980,
and returned in 1986, but should consider him to have worked during that
time.
ANALYSIS AND FINDINGS
Volume 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).
The Commission finds that the January 19, 1995 agreement was preempted
by the subsequent agreement. The June 26, 1997 agreement clearly states
that �Complainant shall withdraw, waive or forego all pending, unresolved
claims of discrimination. . . .� Despite complainant's arguments to
the contrary, this waiver included the January 19, 1995 settlement.
Accordingly, the agency's finding that the January 19, 1995 agreement
was superceded is proper.
The agency's failure to explicitly mention the January 19, 1995 agreement,
does not indicate any lack of good faith in negotiations of the June 26,
1997 agreement. Complainant also has failed to show that he was coerced
into signing the agreement. Complainant, as in any settlement agreement
negotiations, had the option to proceed with his complaint concerning
his termination, or to sign the agreement.
Complainant also implies that he was on medication, and therefore did not
have the capacity to enter a contract. We have consistently required
some outside evidence of incapacity to prove a complainant's incapacity
to enter a settlement agreement. See Kocher-Kinsman v. Department of
Agriculture, EEOC Appeal No. 01992748 (January 18, 2000) recons. den. EEOC
Request No. 05A00376 (May 24, 2000) (finding a claimant incapable
of entering a valid agreement based on statements and evidence from
physicians); see also Brady v. United States Postal Service, EEOC Appeal
No. 01960232 (November 5, 1996) (feeling of being �uncomfortable� or
�put on the spot� insufficient to prove incapacity). Complainant has
presented no evidence of his incapacity, and his unsupported claim does
not justify voiding the settlement.
Allegations that subsequent acts of discrimination violate a
settlement agreement must be processed as separate complaints.
29 C.F.R. � 1614.504(c). Complainant contends that the agency improperly
calculated his retirement payment. The settlement agreement provides for
complainant's retirement, but does not address whether he would receive
credit for the time between his termination in 1980 and reinstatement
in 1986. It also does not mention how his retirement benefits would
be calculated. Further, this calculation occurred subsequent to the
parties' signing of the agreement. Therefore, this matter is more
properly addressed as a separate complaint, if complainant believes that
the alleged improper calculations were a result of discrimination.
CONCLUSION
Accordingly, the agency's decisions at issue in Appeal Nos. 01995908
and 01A00729 are AFFIRMED.
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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)
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:
July 10, 2000
____________________________
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 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.
2The agency was unable to supply a copy of a certified mail return
receipt or any other material capable of establishing the date complainant
received the agency's dismissal, final action or decision. Accordingly,
since the agency failed to submit evidence of the date of receipt, the
Commission presumes that complainant's appeal was filed within thirty (30)
days of receipt of the agency's decision. See, 64 Fed. Reg. 37,644,
37,659 (1999)(to be codified and hereinafter cited as 29 C.F.R. �
1614.402).