0120072961
08-28-2007
Joe DeLeon, Complainant, v. R. James Nicholson, Secretary, Department of Veterans Affairs, Agency.
Joe DeLeon,
Complainant,
v.
R. James Nicholson,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120072961
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 May 11, 2007, finding that it was in
compliance with the terms of the February 15, 2007 settlement agreement
(SA) 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:
(2) 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 10/25/04 and will submit this addendum
to the Department of Labor for its approval by no later than 3/1/07.
By letter to the agency dated April 10, 2007, complainant alleged that
the agency was in breach of the settlement agreement, but provided
no details. At the request of the agency, in a submission dated April
19, 2007, complainant clarified the way in which he believed the agency
had breached the agreement. Specifically, complainant alleged that the
agency failed to "send the letter to the U. S. Department of Labor per
our agreement. No later than 3/1/07, still I have not gotten what was
agreed on. The letter was sent late." He also claimed that there was a
"verbal agreement to change my PD [position description] to Motor Vehicle
Operator - Vehicle Maint[enance] WG-6 with pay retention in the hearing
room" and that Management Official 1 (MO-1) "has not given me what she
agreed to" and MO-1 "has not given or changed my PD as agreed."
In its May 11, 2007 FAD, the agency concluded that although the letter
to the Department of Labor was sent one day late, on March 2, 2007,
the agency had substantially complied with the SA because it had
fulfilled what was required of it by clause 2 of the SA. The agency
also found that complainant's allegation that he had not received his
revised position description did not constitute a violation of the SA
because it was not included in the written and signed version of the SA.
The agency directed complainant to initiate a new EEO complaint if he
felt that he had not received a new position description as a result
of discrimination. The agency concluded that it had not breached the
SA as alleged. On appeal, complainant did not provide any written
argument that would show that the agency had breached the agreement,
and the agency requested that their finding of no breach be affirmed.
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 the instant case, we find that the agency's conclusion that it has
not breached clause 2 of the SA because it had sent the letter to the
Department of Labor one day late is correct. The agency fulfilled
what was required of it and the fact that the letter was sent one day
after the deadline does not warrant a finding of breach in this case.
We further find that complainant's claim that a "verbal agreement" with
MO-1 was breached when he did not receive a new position description and
grade is not an enforceable provision of the SA. This appears nowhere
in the written SA that is a part of the record, and complainant provides
no proof that it was ever agreed to by the parties and memorialized
in writing. The Commission cannot enforce a verbal agreement, and we
therefore find no breach of the SA in this regard.
CONCLUSION
We therefore find that the agency has not breached the settlement
agreement signed between it and the complainant on February 15, 2007,
and the agency's finding of no 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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
8-28-07
__________________
Date
2
0120072961
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
4
0120072961