01A11873_r
10-08-2002
Kenneth A. La Faso, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.
Kenneth A. La Faso v. Department of Veterans Affairs
01A11873
October 8, 2002
.
Kenneth A. La Faso,
Complainant,
v.
Anthony J. Principi,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A11873
Agency No. 200P0002992903
DECISION
Complainant timely appealed the agency's decision that denied his claim
that an alleged settlement agreement entered into between the parties
had been breached.
The record reveals that complainant, an Attorney, GS-14, at the agency's
Los Angeles Regional Counsel, was not selected for the Assistant Regional
Counsel position in or about August 1998. Complainant stated that he
threatened to file an EEO complaint with regard to his nonselection and
that this resulted in a settlement agreement.
The purported settlement agreement is a memorandum dated August 26, 1998,
which is signed by complainant and initialed by the Regional Counsel.<1>
The subject line of the August 26, 1998 memorandum lists the subject
as, �Agreement re Assistant Regional Counsel Position.� The August 26,
1998 memorandum states, in full, that:
This will confirm, per our several conversations and your advisements,
and per our recent meeting on August 17, 1998[,] on the above subject
that nothing will change with respect to me or my job position and that
you have agreed to the following:
I will have the title of Assistant Regional Counsel - Medical/Legal
Affairs, and will be co-equal to any other Assistant Regional Counsel
in the office, with the only exception being that, unless delegated same
by you and mutually agreed, I will not have supervisory responsibilities.
As the most senior grade 14 attorney in the office, I will continue
to work independently and will only and solely report to and will only
and solely be supervised by you. No other person in the Los Angeles or
satellite San Diego Regional Counsel offices will have any supervisory
authority, responsibility or duties over me or my position.
No General Counsel, Regional Counsel, VHA or VBA system-wide Announcement
will be made regarding the selection or designation of any persons for
any of the Assistant Regional Counsel positions in this office or our
San Diego office.
I will retain and continue to retain my front office and front parking
lot space.
The above Agreement will remain in effect for the remainder of my tenure
in this office.
In April 1999, the agency's Office of General Counsel (OGC) learned that
the Regional Counsel allowed certain attorneys, including complainant,
to use the title of Assistant Regional Counsel. By letter dated April 7,
1999, the OGC's Deputy General Counsel informed the Regional Counsel that
he lacked the authority to allow these attorneys to use this title and
that he also lacked the authority to allow these attorneys to deviate
from the chain of authority. The Deputy General Counsel ordered the
Regional Counsel to rescind his actions. Complainant's title was changed
from Assistant Regional Counsel back to Principal Senior Attorney.
Complainant initiated contact with an EEO Counselor on May 28, 1999.
On August 30, 1999, complainant filed a formal EEO complaint wherein
he claimed in part that he had been discriminated against on the bases
of his sex (male), age (50) , disability (bilateral carpal tunnel
syndrome and ulnar conditions), and in reprisal for his previous EEO
activity under Title VII, the Age Discrimination in Employment Act,
and the Rehabilitation Act, when the agency breached the agreement of
August 26, 1998. Complainant was informed by the agency that a separate
procedure exists for the adjudication of a breach claim. Subsequently,
complainant filed a claim with the agency alleging that the agency had
breached a settlement agreement.
By decision dated December 15, 2000, the agency determined that there was
no valid EEO settlement agreement in existence. The agency stated that
there was no meeting of the minds between complainant and the Regional
Counsel. According to the agency, the Regional Officer entered into
the agreement for the purpose of placating staff dissatisfaction with
the Assistant Regional Officer selection. The agency stated that the
Regional Officer denied recalling any mention of an EEO dispute as the
reason for the agreement. The agency determined that the agreement also
lacks consideration. The agency noted that the agreement contains nothing
of value from complainant in exchange for the agency's promised actions.
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.
If the complainant believes that the agency has failed to comply with
the terms of a settlement agreement or final action, the complainant
shall notify the EEO Director, in writing, of the alleged noncompliance
within 30 days of when the complainant knew or should have known of the
alleged noncompliance. The complainant may request that the terms of
the agreement be specifically implemented, or, alternatively, that the
complaint be reinstated for further processing from the point processing
ceased.
Upon review of the record, we find that the parties did not enter
into a binding EEO settlement agreement. In order for there to be
a binding settlement agreement, the agreement must have been entered
into in conjunction with the EEO process. See 29 C.F.R. � 1614.504(a).
The record reveals that complainant had not initiated the EEO process
at the time that the agreement was executed. Complainant does not claim
that he had filed an EEO complaint or contacted an EEO counselor at the
time the August 26, 1998 memorandum was signed. Moreover, we note that
the agreement contains no language purporting to resolve any EEO matter
nor does it require any action on the part of complainant. Therefore,
we agree with the agency that because there is no valid EEO settlement
agreement, there was no breach of the purported agreement by the agency.
The agency notes on appeal that complainant's EEO complaint filed on
August 30, 1999, alleging that complainant was discriminatorily not
selected for the position of Assistant Regional Counsel in August 1998,
has been accepted and investigated by the agency and has not yet been
subject to a final agency action.
Accordingly, the agency's decision in this matter 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
October 8, 2002
__________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
__________________
Date
______________________________
1There is only one signature line and that signature line is for
complainant. Complainant signed the August 26, 1998 memorandum (the
purported settlement agreement) on that signature line. Although it
is not clear from the handwriting whose initials are beneath this
signature line, the agency admits that the initials are those of the
Regional Counsel.