01991412
10-08-1999
Lamont K. Lane, Appellant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.
Lamont K. Lane v. Department of Veterans Affairs
01991412
October 8, 1999
Lamont K. Lane, )
Appellant, )
)
v. ) Appeal No. 01991412
) Agency No. 98-0624
Togo D. West, Jr., )
Secretary, )
Department of Veterans )
Affairs, )
Agency. )
)
DECISION
INTRODUCTION
On December 3, 1998, appellant filed a timely appeal with this Commission
from a final decision (FAD) by the agency dated November 19, 1998, finding
that it was in compliance with the terms of the April 3, 1998 settlement
agreement into which the parties entered. See 29 C.F.R. ��1614.402,
.504(b); EEOC Order No. 960, as amended.
ISSUE PRESENTED
The issue on appeal is whether the agency properly found no settlement
breach.
BACKGROUND
The settlement agreement provided, in pertinent part, that:
(1) The agency agrees to change annual and sick leave charged on November
3, 4, 5, and 6, 1997 to administrative absence.
(2) The agency provides complainant with a fair and equitable work
environment free from harassment or any other discrimination based
on race, color, religion, sex, national origin, age, disability, and
reprisal for filing this complaint.
(3) The agency will remove all mention of the November 3, 1996, incident
from complainant's Official Personnel Folder.
(4) The agency will send complainant to Interpersonal Communications
Training which complainant agrees to attend.
(5) Complainant agrees to withdraw the complaint in its entirety.
(6) Complainant agrees that there will be no future substantiated
incident of disrespectful conduct, use of insulting, abusive, or obscene
language to or about personnel, patients, or visitors, or abuse of a
patient or beneficiary by complainant.
By letter to the agency dated June 28, 1998, appellant alleged that the
agency was in breach of the settlement agreement, and requested that the
agency reinstate his EEO complaint. Specifically, appellant alleged
that the agency failed to do any of the provisions of the settlement
agreement.
In its November 19, 1998 FAD, the agency concluded that it did not breach
the settlement agreement. The agency found that appellant's annual
and sick leave charged on November 3, 4, 5, and 6, 1997, was changed to
administrative absence. Further, the agency found that the incident of
November 3, 1996, was removed from appellant's Personnel Folder and that
appellant attended an interpersonal communications course entitled "Using
the Myers-Briggs to Understand Yourself and Others" on March 31, 1998.
The agency stated that appellant failed to provide documentation to
demonstrate that the agency has failed to provide a "fair and equitable"
work environment. Therefore, the agency found that there was no breach
of the settlement agreement. This appeal followed.
ANALYSIS AND FINDINGS
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.
That section further provides that if the complainant believes that the
agency has failed to comply with the terms of a settlement agreement,
the complainant shall notify the Director of Equal Employment Opportunity
of the alleged noncompliance with the settlement agreement within 30
days of when the complainant knew or should have known of the alleged
noncompliance. 29 C.F.R. �1614.504(a). The complainant may request
that the terms of the settlement agreement be specifically implemented
or request that the complaint be reinstated for further processing from
the point processing ceased.
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 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 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).
Provision (1)
Upon careful review of the record, we find that the agency fulfilled its
obligation in provision (1) of the settlement agreement. The agency did
indeed change appellant's sick and annual leave to administrative absence.
The settlement agreement is silent as to when the agency must fulfill
its part of the agreement. Therefore, we find that the agency did not
breach this portion of the settlement agreement.
Provision (2)
Provision (2) of the Settlement requires the agency to provide a "fair
and equitable" work environment. Appellant alleges that the agency has
not provided such an environment. Specifically, appellant cites that
a married couple works on the same team which does not allow for a fair
and equitable work environment. Appellant's allegation is outside the
scope of the settlement agreement. Therefore, the Commission finds that
the agency has not breached this provision of the settlement agreement.
Provision (3)
Appellant alleges that the agency has failed to adhere to provision (3) of
the settlement agreement which requires the agency to remove all mention
of a November 3, 1996 incident from appellant's official personnel folder.
Upon review of the record, we find that the agency has failed to provide
evidence to substantiate its FAD. Therefore, we shall Vacate the agency's
FAD pertaining to this provision and Remand this issue so that the agency
may supplement the record as stated in the Order below.
Provision (4)
Provision (4) of the settlement agreement requires that the agency
send appellant to interpersonal communications training. Appellant
alleges that the agency breached this provision for it has not sent
him to such training. Appellant attended a course entitled "Using
the Myers-Briggs to Understand Yourself and Others" on March 31, 1998.
The agency contends that this fulfilled the training requirement of the
settlement agreement. The training occurred prior to the signing of the
settlement agreement and the Agreement is silent regarding this course.
The Commission finds that because the agency has not provided appellant
a training course since the settlement agreement became effective,
the agency has committed a breach of the agreement.
EEOC Regulation 29 C.F.R. �1614.504(c) provides, in part, that when a
breach is found, the Commission may order specific enforcement of the
settlement agreement or reinstatement of the complaint from the point
processing ceased. In the present case, since appellant has received
other benefits pursuant to the agreement, equitable considerations dictate
that the agency specifically enforce the agreement at issue since to
reinstate the complaint the parties would have to be returned to the
status quo. Accordingly, we find that the agency shall take the action
as directed in the Order below and not reinstate appellant's complaint.
CONCLUSION
Accordingly, the portion of the FAD finding of no breach of settlement
agreement provisions (3) and (4) is REVERSED and REMANDED to the agency
for further processing in accordance with the Order below. The agency's
FAD finding of no breach of settlement agreement provisions (1) and (2)
is AFFIRMED.
ORDER
The agency is ORDERED in accordance with 29 C.F.R. �1614.504(c) to
specifically implement provision (4) of the settlement agreement which
requires the agency to send appellant to interpersonal communications
training. Therefore, the agency is directed to provide appellant with
interpersonal communications training.
The agency's effort to implement this provision shall be documented,
and this information must be sent to the Compliance Officer as referred
below.
Further, the agency is ORDERED to supplement the record with regard to
provision (3) which requires the agency to remove all mention of the
incident of November 3, 1996. Based on the foregoing, the agency is
ORDERED to determine whether it has breached the settlement agreement
and issue a final agency decision within thirty (30) calendar days of
the date this decision becomes final.
A copy of the final decision must be submitted to the Compliance Officer,
as referred below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0595)
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 appellant. If the agency does not comply with the Commission's
order, the appellant may petition the Commission for enforcement of
the order. 29 C.F.R. �1614.503 (a). The appellant 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. ��1614.408, 1614.409, and 1614.503 (g). Alternatively,
the appellant 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. ��1614.408 and 1614.409. 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) (Supp. V 1993). If the
appellant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. �1614.410.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (T0993)
This decision affirms the agency's final decision in part, but it also
requires the agency to continue its administrative processing of a
portion of your complaint. You have the right to file a civil action
in an appropriate United States District Court on both that portion of
your complaint which the Commission has affirmed AND that portion of the
complaint which has been remanded for continued administrative processing.
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. 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. 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 (Z1092)
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:
Oct. 8, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations