0120083143
02-27-2012
Laray A. Arrington, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency.
Laray A. Arrington,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs
(Veterans Health Administration),
Agency.
Appeal No. 0120083143
Agency No. 200H05232008101959
DECISION
Complainant filed a timely appeal with this Commission from a final
determination by the Agency dated June 3, 2008, finding that it was in
compliance with the terms of the 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. For the reasons that follow, we AFFIRM the
Agency’s final determination.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked
as a Prosthetics Purchasing Agent, GS-6, at the Agency’s Boston Health
Care System in Jamaica Plain and West Roxbury, Massachusetts.
Believing that the Agency subjected him to unlawful discrimination,
Complainant contacted an Agency EEO Counselor to initiate the EEO
complaint process. On March 28, 2008, Complainant and the Agency entered
into a settlement agreement to resolve the matter. The settlement
agreement provided, in pertinent part, that the Agency would:
2(a). Issue a quality step increase to Complainant that will be effective
the next pay period after thirty (30) days from the date that both
Parties execute this Agreement; and
2(b). Pay Complainant a lump sum amount of One Hundred Dollars and Zero
Cents ($100.00) within thirty (30) days after the date that both parties
execute this Agreement.
By letter to the Agency dated May 12, 2008, Complainant alleged that the
Agency was in breach of the settlement agreement, and requested that the
Agency reinstate his complaints. Specifically, Complainant alleged that
the Agency did not comply with the time-frame specified in the agreement
pertaining to the issuance of his quality step increase. Complainant
also alleged that Agency continued to subject him to harassment after
the settlement agreement.
In its June 3, 2008 FAD, the Agency concluded that it had complied with
the settlement agreement. The Agency noted that on April 19, 2008, the
Medical Center Director approved a quality step-increase for Complainant
that became effective on April 27, 2008. The Agency also noted that it
issued Complainant a check for $100.00 on April 28, 2008. Therefore,
the Agency concluded that it complied with the explicit terms of the
settlement agreement within a reasonable amount of time.
CONTENTIONS ON APPEAL
On appeal, Complainant contends that the Agency did not provide
him with a quality step-increase within a reasonable amount of
time. Complainant contends that the paper work for the quality step
increase was not sent to the Agency’s payroll department within the
proper time-frame. Complainant does not dispute that he received the
quality step increase and a check for $100.00. However, Complainant
contends that he returned the $100.00 check and the money he received
from the quality step-increase because he has been subjected to continued
ongoing harassment.
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. 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. Dep't of
Def., 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. Dep't 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. U.S. Postal
Serv., 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 has complied with the
settlement agreement. Complainant concedes that he received a $100.00
check and a quality step-increase from the Agency. To the extent
Complainant contends that the Agency did not comply with the time
provisions of the agreement, we note that the Commission has found that
the failure to satisfy a time-frame specified in a settlement agreement
does not prevent a finding of substantial compliance of its terms,
especially when all required actions were subsequently completed. Mopsick
v. Dep't of Health and Human Serv., EEOC Appeal No. 0120073654 (Aug. 17,
2009) (citing Lazarte v. Dep't of the Interior, EEOC Appeal No. 01954274
(Apr. 25, 1996)); Sorting v. U.S. Postal Serv., EEOC Request No. 05950721
(Nov. 21, 1996), (citing Baron v. Dep't of the Treasury, EEOC Request
No. 05930277 (Sept. 30, 1993)) (two-week delay in transfer of official
letter of regret rather than letter of apology found to be substantial
compliance). In any event, we find that the Agency complied with the
settlement agreement in a timely fashion in April 2008 with regard to the
issuance of the $100.00 check and the effective date of Complainant’s
step-increase. We note in this regard that Complainant contends that
he returned the benefits he received under the settlement agreement.
The Agency should therefore, upon receipt of this decision, return any
such benefits to Complainant, if it has not already done so.
With respect to the claims of ongoing harassment, the Commission finds
that this matter concerns subsequent acts of alleged discrimination. Such
issues should be addressed as separate complaints of discrimination, not
as settlement breach issues. 29 C.F.R. § 1614.504(c). If Complainant
wishes to pursue the alleged harassment as a separate complaint of
discrimination, he must contact an EEO counselor within 15 days of the
date he receives this decision. If Complainant makes such contact with an
EEO Counselor, the date he first raised the harassment issue in his breach
claim (unless she made prior EEO Counselor contact) shall be considered
the date Complainant first contacted an EEO Counselor, for timeliness
purposes. Cf. Qatsha v. Dep’t of the Navy, EEC Request No. 05970201
(Jan. 16, 1998).
CONCLUSION
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, we AFFIRM the Agency's
determination finding no breach of the settlement agreement.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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 (S0610)
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 (Z0610)
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
February 27, 2012
Date
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0120083143
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120083143