Hassan I. Ali, Complainant,v.Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionJul 10, 2000
01995908 (E.E.O.C. Jul. 10, 2000)

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copy of the January 19, 1995 agreement, but found it was superceded by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).