01a02162
05-24-2000
James Odon, Complainant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.
James Odon v. Department of Veterans Affairs
01A02162
May 24, 2000
James Odon, )
Complainant, )
)
v. ) Appeal No. 01A02162
Togo D. West, Jr., ) Agency Nos. 95-0382, 94-2157, 94-1744
Secretary, )
Department of Veterans Affairs, )
Agency. )
____________________________________)
DECISION
Complainant filed a timely appeal with this Commission from an agency
decision dated December 1, 1999, finding that it was in compliance
with the terms of the April 4, 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 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).
The settlement agreement provided, in pertinent part, that:
(1) The complainant agrees:
. . .
To accept lateral reassignment, effective Monday, April 17, 1995,
as WG-5 Cemetery Caretaker with no known promotion potential to San
Francisco National Cemetery and perform the required assigned duties
timely . . . .
. . .
(2) The agency agrees that:
[Complainant] is to be reassigned from his present location and
position to a WG-5 Caretaker at San Francisco National Cemetery with no
break in service in order to allow him the opportunity to demonstrate
his capabilities and potential in performing the assigned duties
correctly. While occupying this position, [complainant] will only
be under the direct supervision of the Director and/or the Assistant,
Director of Golden Gate National Cemetery.
By letter to the agency dated November 10, 1998, complainant alleged that
the agency was in breach of the settlement agreement, and requested that
the agency specifically implement the terms. Specifically, complainant
stated that in October 1998, he was reassigned back to the Golden Gate
National Cemetery (GGNC) and that this reassignment violated the terms
of the settlement agreement. In addition, complainant claimed that the
agency imposed a change with respect to supervision which is also in
breach of the settlement agreement. Finally, complainant stated that
the agency failed to bargain in good faith with regard to implementation
of the agreement.
In its December 1, 1999 decision, the agency concluded that it was not in
breach of the settlement agreement. The agency found that complainant was
detailed to the San Francisco National Cemetery (SFNC) until October 1998,
and that his assignment was in accordance with the settlement agreement.
The record includes an October 8, 1998 letter from the Director of
the GGNC, indicating that all employees working at the SFNC, including
complainant, will be reassigned to the GGNC beginning October 19, 1998.
The agency noted that the reassignment resulted from the SFNC contracting
out to a private sector firm. The agency stated that the settlement
agreement did not state that complainant would be permanently reassigned
to SFNC and argued that since complainant had been assigned to SFNC for
more than three years before being reassigned back to GGNC, the terms
of the agreement had not been breached.
EEOC Regulation 64 Fed. Reg. 37,644, 37,661 (1999)(to be codified and
hereinafter referred to as 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).
In the present case, we find that the agency did not breach the settlement
agreement entered into by the parties on April 4, 1995. The record shows
that complainant was reassigned to the SFNC from April 17, 1995 through
October, 1998. While complainant emphasizes that the agreement provided
that his detail was for an indefinite period of time, the Commission has
held that if a settlement agreement does not include specific duration
terms for the employment relationship which could have been agreed upon,
it would be improper to interpret the reasonable intentions of the
parties as binding the agency to the terms thereof forever. See Parker
v. Department of Defense, EEOC Request No. 05910576 (August 30, 1991).
The Commission finds that the reassignment for over three years satisfies
provision 2 of the settlement agreement. With regard to complainant's
contention that the agency breached the settlement agreement by imposing
a change in supervision, we find no evidence to support complainant's
contention. The agreement provides that while complainant occupies
the position of WG-5 Caretaker at SFNC, he will be under the direct
supervision of the Director and/or the Assistant, Director of GGNC.
The record contains no evidence indicating that complainant was not under
the supervision of the Director and/or Assistant Director while in this
position at the SFNC. We note that the record contains an October 27,
1998 letter indicating that as of October 19, 1998, all employees assigned
to SFNC and reassigned to GGNC are now under the direct supervision of
the foreman of the GGNC. This change in supervision, however, occurred
after complainant was returned to the GGNC, which the Commission has
already determined not to breach the settlement agreement. In addition,
we find no evidence that the agency bargained in bad faith.
Accordingly, the agency's decision that it did not breach the settlement
agreement was proper and is 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:
May 24, 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.