01A12806_r
12-12-2002
John J. Morykwas, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.
John J. Morykwas v. Department of Veterans Affairs
01A12806
December 12, 2002
.
John J. Morykwas,
Complainant,
v.
Anthony J. Principi,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A12806
Agency No. 99-5694
DECISION
Complainant filed a timely appeal with this Commission from a final
decision (FAD) by the agency dated February 19, 2001, finding that
it was in compliance with the terms of an October 5, 1999 settlement
agreement. See 29 C.F.R. � 1614.402; 29 C.F.R. � 1614.504(b); and 29
C.F.R. � 1614.405.
The October 5, 1999 settlement agreement provided that the agency
agrees to:
(2a) Respond to leave requests within 24 hours of submission, or in a
timely manner, as outlined in the Master Agreement between the Department
of Veterans Affairs and the American Federation of Government Employees,
Article 32�Time and Leave, Section 2�Annual Leave, Item C, which states,
�Management will render timely decisions on employees' leave requests.
Employees should submit requests as far in advance as possible;
(2b) Promote a fair and equitable work environment free from harassment
or any other discrimination based on race, color, religion, sex,
national origin, age, disability, sexual orientation, or reprisal for
filing this complaint.
By letter to the agency dated September 21, 2000, complainant alleged that
the agency breached the settlement agreement. Specifically, complainant
alleged that on August 21, 2000, he submitted an electronic request for
annual leave for August 23, 2000 to the Lab Manager, but that management
failed to respond to his request. Complainant contends that because
management did not respond to his request, he was forced to report to
work on August 23, 2000.
In its February 19, 2001 final decision, the agency concluded that
it did not breach the agreement. The agency responded that there is
no evidence that management was aware of complainant's leave request
until August 23, 2000. The agency further determined that complainant
did not present his leave request to the Lab Manager far enough in
advance to ensure a response before August 23, 2000. The agency noted
that complainant submitted his request just six minutes before the Lab
Manager ended his work day on August 21, 2000, and that the Lab Manager
was not in the office for most of the day on August 22, 2000.
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 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).
However, in Baker v. Chicago Fire & Burglary Detection, Inc., 489
F.2d 953, 955 (7th Cir. 1973), the court held that a valid contract
must be based upon consideration where some right, interest, profit,
or benefit accrues to one party or some forbearance, detriment, loss, or
responsibility is given, suffered, or undertaken by the other. Where the
promissor receives no benefit and the promissee suffers no detriment,
the whole transaction is a nudum pactum. See Collins v. United
States Postal Service, EEOC Request No. 05900082 (April 26, 1990)
(a settlement agreement that was not based upon adequate consideration
was unenforceable).
In the instant case, the agency agreed that it would abide by the
terms set forth for annual leave requests in a Master Agreement between
the Department of Veterans Affairs and the American Federation of
Government. The agency further agreed that it would abide by federal
anti-discrimination regulations and policies. We find that the agency,
in merely agreeing to treat complainant in accordance with existing
statutes, contracts and regulations, provided complainant with nothing
more than that to which he was already entitled as an employee. Therefore,
we find that complainant received no consideration for his agreement
to withdraw his complaint.<1>
Accordingly, we find that the settlement agreement is unenforceable and
the agency's final decision is VACATED. This matter is REMANDED to the
agency for further processing in accordance with the Order below.
ORDER
The agency is ORDERED to resume processing of complainant's complaint
from the point where processing ceased. The agency shall acknowledge to
complainant that it has reinstated and resumed processing of complainant's
complaint.
A copy of the agency letter of acknowledgement must be sent to the
Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the complainant. If the agency does not comply with the Commission's
order, the complainant may petition the Commission for enforcement
of the order. 29 C.F.R. � 1614.503(a). The complainant also has the
right to file a civil action to enforce compliance with the Commission's
order prior to or following an administrative petition for enforcement.
See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g).
Alternatively, the complainant has the right to file a civil action on
the underlying complaint in accordance with the paragraph below entitled
"Right to File A Civil Action." 29 C.F.R. �� 1614.407 and 1614.408.
A civil action for enforcement or a civil action on the underlying
complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c)
(1994 & Supp. IV 1999). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 29 C.F.R. � 1614.409.
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 (R0900)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court within ninety (90) calendar days from the date
that you receive this decision. In the alternative, you may file a
civil action after one hundred and eighty (180) calendar days of the date
you filed your complaint with the agency, or filed your appeal with the
Commission. 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. 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
December 12, 2002
__________________
Date
1We note that provision (2a) states that the agency will approve
requests within 24 hours of submission, and that the 24-hour
approval request in not contained in the Master Agreement. However,
we note that the settlement agreement does not bind the agency
to approve the requests within 24 hours, because the agency may
alternatively approve the leave requests merely �in a timely
manner, as outlined in the Master Agreement.�