Joe DeLeon, Complainant,v.Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionMay 14, 2009
0120091547 (E.E.O.C. May. 14, 2009)

0120091547

05-14-2009

Joe DeLeon, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.


Joe DeLeon,

Complainant,

v.

Eric K. Shinseki,

Secretary,

Department of Veterans Affairs,

Agency.

Appeal No. 0120091547

Agency Nos. 200P-0691-2006100525 & 200P-0691-2006101353

DECISION

Complainant filed a timely appeal with this Commission from a final

decision (FAD) by the agency dated October 24, 2008, finding that it

was in compliance with the terms of the February 15, 2007 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.

The settlement agreement provided, in pertinent part, that:

The agency hereby agrees to expand the "as needed" portion of

Complainant's approved job duties to give him additional responsibility,

as follows:

* With regard to added duties of limited driving, visual inspection of

vehicles and validating and reconciling credit card charges involving

government vehicle fleet cars, the Agency will make an addendum to the

job offer that has been effective since 10/25/2004 and will submit this

addendum to the Department of Labor for its approval by no later than

3/1/2007.

By letter to the agency dated September 29, 2008, complainant alleged that

the agency breached the above term (hereinafter referred to as term 2)

of the settlement agreement.

Previously, in DeLeon v. Department of Veterans Affairs, EEOC Appeal

No. 0120072961 (August 28, 2007), the Commission ruled, after complainant

made an earlier claim of breach in April 2007, that the agency did not

breach term 2. Specifically, the Commission ruled that the agency sent

the agreed upon letter to the Department of Labor on March 2, 2007,

which although one day late, substantially complied with term 2.

In his notice of breach dated September 29, 2008, complainant alleged

that the agency breached term 2 when it did not permit him to drive, and

he was advised he would be required to undergo another physical before

being cleared to do so. Complainant contended that this was improper

because he was allegedly cleared to drive by the agency's Employee Health

Physician's Office on February 22, 2006, and that medical examinations

for drivers of his type were required only once every four years, so he

was not due for another medical examination. Complainant added that a

September 4, 2008, letter by the Department of Labor, Office of Workers'

Compensation Programs (OWCP) confirmed that medical documentation on

file revealed no driving restrictions, and on August 4, 2006, his medical

provider wrote he had none.

In its October 24, 2008 FAD, the agency concluded that the Commission

already ruled that the agency complied with term 2, and he is not

permitted to relitigate the same matter. In the alternative, the FAD

found that complainant did not prove breach because there are no terms in

the settlement agreement regarding medical examinations or motor vehicle

driving restrictions. The FAD advised complainant that if he believed

he was discriminated against, he should discuss it with an EEO counselor,

and noted a counselor's report indicated he already did so.1

On appeal, complainant argues that the settlement agreement included

the added duties of limited driving, subject to the approval of the

Department of Labor, which occurred via its letter dated September

4, 2008. He also reiterated his argument in the notice of breach that

he was medically cleared to drive, and was not due for another driver's

physical. He added that the agency still does not permit him to perform

visual inspections of vehicles.

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).

In DeLeon v. Department of Veterans Affairs, EEOC Appeal No. 0120072961

(August 28, 2007), the Commission ruled that the agency complied with

term 2 by sending the required addendum to complainant's job offer to

the Department of Labor, albeit one day late. Complainant now contends

that the agency breached term 2 by not permitting him to drive without

another physical because on September 4, 2008, OWCP approved the addendum

via letter confirming it had no medical documentation on file restricting

his driving, and he already had a driver physical clearing him to drive

well within the last four years, as required.

We find that complainant's second claim of breach is sufficiently

different from the first that it does not constitute a relitigation

of the same matter. However, we agree with the FAD that complainant

failed to identify language or a term in the settlement agreement

that was breached, and we find none. Term 2 promised that the added

duty of limited driving would be added to complainant's job offer (and

hence effectively his position description), subject to the approval of

the Department of Labor. This is different from a promise to permit

complainant to drive. As conceded by complainant, there are certain

requirements that must be met to drive. While complainant argues

that he has met these requirements, the settlement agreement does not

constitute a promise to permit driving.

Accordingly, the FAD finding no breach is affirmed.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M1208)

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 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 (S0408)

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 (Z1008)

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 14, 2009

__________________

Date

1 The counselor's report indicates that complainant alleged discrimination

when in September 2008, the agency refused to return him to his assigned

duties as a driver, and that it indicated a physical examination

was required before he would be permitted to do so. Following this

counseling, complainant filed a formal complaint. This decision in no

way rules on complainant's allegations of discrimination.

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0120091547

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

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