01A52456
07-14-2006
Herbert L. Aaron, Complainant, v. R. James Nicholson, Secretary, Department of Veterans Affairs, Agency.
Herbert L. Aaron,
Complainant,
v.
R. James Nicholson,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A524561
Agency Nos. 97-0366; 97-1055; 97-2210; 98-3107 and 2004-2115
DECISION
Complainant filed a timely appeal with this Commission from a final
decision (FAD) by the agency dated January 21, 2005, finding that it was
in compliance with the terms of the July 15, 1999 and the February 9,
2004 settlement agreements into which the parties entered. The settlement
agreement, dated July 15, 1999, provided, in pertinent part, that:
(1) Complainant may be required to perform clerical tasks in concert
with his regular duties and responsibilities. These clerical tasks
will be comparable to those performed by other employees in Social Work
Service and will in no way become part of [complainant's] regular duties
and responsibilities.
(2) Note, payroll and billing duties will not be transferred
to Complainant. However, he will be required to aggregate all the
information generated so that well-informed decisions may be made with
respect to the budget by the Coordinator, Compensated Work Therapy;
and Chief of Social Work Service and/or the Head of the Product Line.
Complainant will substantially prepare a budget and will assist the
Coordinator, Compensated Work Therapy; and Chief of Social Work Service
and/or Head of the Product Line, prepare the budget. Complainant's duties
in this area will include reviewing the adequacy of fund control balances
and monitoring trends and/or gaps in billing and cash receipts which might
adversely affect the overall budget process. Complainant's oversight,
monitoring and review of the budget process will be ongoing throughout
the fiscal year.
The settlement agreement, dated February 9, 2004, provided, in pertinent
part, that the agency shall "Continue to honor the terms and conditions
specified in the Complainant's prior EEO Settlement Agreement dated July
15, 1999."
By three separate letters to the agency, complainant alleged that the
agency was in breach of the 1999 settlement agreement, and requested that
the agency specifically implement its terms. First, by letter dated
November 13, 2004, complainant alleged that the agency violated the
1999 settlement agreement when complainant's supervisor (S1) assigned
complainant clerical duties by requesting that he complete minutes at
agency meetings. Complainant alleged that the 1999 settlement agreement
prohibits such duties. Second, by letter dated November 23, 2004,
complainant alleged that the agency was in breach of the 1999 settlement
agreement when the agency stopped providing complainant with information
that complainant needed in order to aggregate financial data. Third,
by letter dated December 17, 2004, complainant alleged that the agency
was in breach of the 1999 settlement agreement when the agency required
complainant to perform payroll and billing duties. Complainant alleged
that the 1999 settlement agreement prohibits such duties.
The agency's FAD, dated January 21, 2005, found that the agency did
not breach the 1999 settlement agreement when S1 asked complainant to
perform clerical duties. The agency argued that the plain and unambiguous
language of the 1999 settlement agreement clearly permits the assignment
of clerical duties to complainant. Moreover, the agency indicated that
the clerical duties are similar to the duties carried out by others in
Social Work Service as required under the 1999 settlement agreement.
The agency failed to address complainant's second and third breach
allegations.
On appeal, complainant reasserts the above-mentioned allegations of
breach and contends that the agency violated the 1999 and 2004 settlement
agreements. Complainant argues that no other GS-13 employees in Social
Work Service have been required to assume clerical duties and that these
duties are not in concert with his regular duties and responsibilities.
Complainant additionally contends that the agency violated the 1999
settlement agreement because the agreement requires the agency to
provide him with necessary information in order to prepare and update
the budget and this information was purposely being kept from him.
Lastly, complainant asserts that even though he is no longer required to
complete payroll and billing duties, S1 cited that helping with payroll
and billing would help complainant meet performance standards.
In its Opposition Brief, dated April 7, 2005, the agency requests that
we affirm the FAD's holding with respect to the first breach allegation.
Despite the agency's failure to address complainant's second and third
breach allegations in the FAD, the agency's Opposition Brief states for
the first time that the agency did not breach the 1999 and 2004 settlement
agreements concerning complainant's second and third breach allegations.
Specifically, with respect to the second allegation, the agency states
that it is in compliance with the settlement agreements as complainant
failed to specify which information he was in need of. Furthermore,
the agency states that because it attempted to direct complainant
to the Chief of Fiscal who would remedy complainant's concerns, and
because complainant never contacted said individual, the agency must be
deemed to be in compliance with the terms of the settlement agreements.
With respect to the third allegation, the agency argues that it is
in compliance with the terms of the settlement agreements because the
disputed duties were effectively removed from complainant's Performance
Standards on February 7, 2005, after which complainant agreed to the
removal of these duties and signed the revised Performance Standards.
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 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 resort to extrinsic evidence of any nature. See Montgomery
Elevator Co. v. Building Eng'g Servs. Co., 730 F.2d 377 (5th Cir. 1984).
Upon review, we find that the agency correctly determined that it
did not breach the terms of the 1999 and 2004 settlement agreements.
It is clear from a plain reading of clause (1) above that complainant
could be instructed to carry out clerical. In conformity with the 1999
agreement, the task of taking minutes is also required of other employees
in Social Work Service2 and we decline to find that the assignment of
this task to complainant on a rotating basis constitutes a breach of
the settlement agreements. In so finding, we note that we do not find
the occasional taking of minutes to be one of complainant's "regular
duties and responsibilities" as described in the settlement agreement.
With respect to complainant's second allegation and clause (2) above,
we find that the settlement agreements do not require the agency to
provide complainant with information in order to carry out his duties.
Moreover, record evidence indicates that complainant had the onus to
locate the necessary information. Regardless, complainant's request
for information did not go unanswered as the record indicates that
the agency attempted to resolve the matter by assisting complainant.
Thus, the Commission finds that the agency is in compliance with the
agreement under clause (2) above. With respect to the third allegation,
even though the agency initially did not comply fully with clause (2),
the agency removed the disputed duties from complainant's Performance
Standards. On appeal, complainant admits that his payroll and billing
duties were removed. We find that the agency substantially complied
with the terms of the agreement as detailed above.
CONCLUSION
In the instant case, the Commission finds the agency's actions in this
matter to be consistent with the language of the settlement agreement.
Record evidence in this case simply does not support complainant's
contentions. Thus, complainant is not entitled to any relief. Accordingly,
the agency's final decision finding no settlement breach is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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:
July
14,
2006
______________________________
__________________
Carlton M. Hadden, Director
Date
Office of Federal Operations
1 The Commission has simultaneously closed EEOC Appeal No. 01A52457
because it is a duplicate of the instant appeal. We note that complainant
contends that EEOC Appeal No. 01A52457 ought to be decided separately
from the instant appeal because it addresses his allegations of breach
of a 2004 settlement agreement, whereas 01A52456 addresses allegations
of breach of a 1999 settlement agreement. The agency responds that
all of complainant's breach allegations should be addressed in one
decision on appeal, noting that the 2004 settlement agreement merely
"honors" the terms of the 1999 settlement agreement, and therefore, all
of complainant's breach allegations concern the same terms that are in
both settlement agreements. We find that complainant has only appealed
one FAD (issued January 21, 2005) concerning breach allegations that
apply equally to the 1999 and 2004 settlement agreements. Accordingly,
we agree with the agency that only one appeal should have been docketed
in this matter.
2 The record indicates that complainant and other Compensated Work
Therapy staff members were instructed to record meeting minutes twice
per month on a rotating basis.
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01A52456
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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01A52456