0120100097
05-12-2011
James P. Resayo, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
James P. Resayo,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120100097
Agency No. 200P06622009102157
DECISION
Complainant filed a timely appeal with this Commission from a final
decision (FAD) by the Agency dated September 11, 2009, finding that
it was in compliance with the terms of the settlement agreement into
which the parties entered. See 29 C.F.R. § 1614.402; 29 C.F.R. §
1614.504(b); and 29 C.F.R. § 1614.405.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked
as a Lead Radiology Technologist at the Veterans Affairs Medical Center
in San Francisco, CA. Believing that the Agency subjected him to unlawful
discrimination, Complainant contacted an Agency EEO Counselor to initiate
the EEO complaint process. On April 29, 2009, Complainant and the Agency
entered into a settlement agreement to resolve the matter. The settlement
agreement required, in pertinent part, that the Agency would:
(2a) Promote [Complainant] retroactively from a GS-10, Step 10 Lead
Radiology Technologist to a GS-11, Step 8 Lead Radiology Technologist.
The date of the promotion is effective on April 4, 2006 based on the
Department of Veterans Affairs Professional Standards Board recommendation
for promotion dated by the Board on 12/15/2006;
(2b) Based on the effective date of the retroactive promotion,
calculate and pay [Complainant] his retroactive salary, federal benefits,
and any interest owed in accordance with applicable provisions of the
Back Pay Act, 5 U.S.C. 5596.
(2c) Comply with and all applicable Internal Revenue Services laws
and regulations with regard to the withholding and reporting of federal
and state taxes. Process all applicable payroll deductions, including
taxes, before any retroactive salary, benefit, or interest is paid to
[Complainant].
(2d) Notify AFGE once the retroactive salary, federal benefits,
and any interest owed have been paid and credited to [Complainant].
By letter to the Agency dated July 5, 2009, Complainant alleged that the
Agency was in breach of the settlement agreement, and requested that the
Agency implement its terms. Specifically, Complainant alleged that the
Agency failed to timely promote him to the position of GS-11, Step 8 Lead
Radiology Technologist in accordance with provision (2a) and failed to
pay him all of the back pay he is entitled to pursuant to provisions (2b)
and (2c) of the April 29, 2009 settlement agreement. Complainant also
alleges that the Agency violated provision (2d) when it failed to advise
AFGE regarding the retroactive salary, benefits and interested owed to
Complainant pursuant to the agreement between the parties.
In its September 11, 2009 FAD, the Agency concluded that it had complied
with the specific provisions of the agreement between the parties.
The Agency indicted that on June 19, 2009, within two months of the
agreement between the parties, Complainant was retroactively promoted to
the position of GS-11, Step 8, Lead Radiology Technologist position in
accordance with the settlement. The Agency further indicated that in July
and August 2009, back pay was distributed to Complainant in accordance
with the agreement. The Agency’s final determination included detailed
information regarding several payments to Complainant beginning on July
10, 2009 and ending on August 28, 2009, and totaling $17,053.30 as back
pay owed to and distributed to Complainant accordingly. The Agency
further indicates that on September 1, 2009, AFGE was properly notified
that retroactive salary, federal benefits and interest owed had been
paid and credited to Complainant pursuant to the agreement.
ANALYSIS
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. Dep’t of Def., 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. Dep’t 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. U.S. Postal Serv.,
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 instant case, the record indicates that Complainant was
retroactively promoted as provided in the settlement agreement on June 19,
2009 and he received all back pay owed in accordance with the Agreement
in July and August 0f 2009. The Agency correctly points out that the
agreement does not provide a specific time frame in which the Agency
is obligated to carry out its obligations under provisions (2a), (2b),
(2c) and (2d) of the settlement. The Commission has held that in the
absence of a specific time frame in a settlement agreement setting forth
how long a party is to engage in an act, it is interpreted to be for a
reasonable amount of time. See Garcy v. U.S. Postal Serv., EEOC Appeal
No. 01A24396 (Sept. 3, 2003); Parker v. Department of Defense, EEOC
Request No. 05910576 (Aug. 29, 1991). Here, we find that approximately
two months is a reasonable amount of time. In that regard, we find that
Complainant has failed to demonstrate that the Agency has breached the
agreement as alleged.
The record further indicates that in a letter to the Agency dated July 8,
2009, Complainant further alleges that the Agency’s delay in complying
with the April 29, 2009 settlement agreement is evidence of the Agency’s
continued harassment and reprisal discrimination toward him.
The Commission has previously held that a complaint which alleges reprisal
or further discrimination in violation of a settlement agreement's “no
reprisal” clause, is to be processed as a separate complaint and not
as a breach of settlement. See Bindal v. Department of Veterans Affairs,
EEOC Request No. 05900225 (August 9, 1990); 29 C.F.R. § 1614.504(c).
In the present case, we find that Complainant is raising new allegations
of reprisal regarding incidents occurring subsequent to the settlement
agreement. Therefore, the Commission finds that the Agency correctly
found that it was not in breach of the agreement and that the new reprisal
claims raised should be treated as a new complaint. In its final decision,
the Agency determined that those matters are currently being processed
by the Agency as a new complaint.
CONCLUSION
Upon review, the Commission finds that the Complainant has failed
to demonstrate that the Agency breached the agreement as alleged.
In that regard, the Commission finds that the Agency’s determination
of compliance was proper. The Agency’s decision is affirmed for the
reasons set forth herein.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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
77960, Washington, DC 20013. 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 (S0610)
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 (Z0610)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with the
Court 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
May 12, 2011
__________________
Date
2
0120100097
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120100097