01a02112
09-26-2000
Larry J. Maddux, Complainant, v. Hershel W. Gober, Acting Secretary, Department of Veterans Affairs, Agency.
Larry J. Maddux v. Department of Veterans Affairs
01A02112
September 26, 2000
.
Larry J. Maddux,
Complainant,
v.
Hershel W. Gober,
Acting Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A02112
Agency Nos. 99-5279, 97-2063
DECISION
Complainant filed a timely appeal with this Commission from a final
decision by the agency dated December 8, 1999, finding that it was in
compliance with the terms of the October 22, 1997 settlement agreement
into which the parties entered.<1>
The settlement agreement provided, in pertinent part, that:
Section 1: Party One [complainant] agrees to:
Accept priority consideration for an entry level position of computer
specialist at the G.S. 5 - 7 level.
. . . .
Final agreement will not be shared except to EEO.
Section 2: Party Two [Responsible Manager Official] agrees to:
. . .
Priority consideration will be given to [complainant] when the position
has been posted.
Final agreement will not be shared with any other party except EEO.
Section 3: The Medical Center agrees to:
Give priority consideration to [complainant] when the position becomes
available.
. . . .
Final agreement will not be shared with other parties with the exception
of EEO.
Section 4: All parties also stipulate that:
. . . .
[T]his agreement shall be kept confidential and the terms shall not
be disclosed by either party except to authorized officials or other
officials responsible for implementing the agreement unless agreed
to by mutual consent.
By letter to the agency dated September 23, 1999, complainant alleged that
the agency was in breach of the settlement agreement, and he requested
that the agency reinstate his original complaint. Specifically,
complainant alleged that the agency failed to comply with the
confidentiality provisions of the settlement agreement when it disclosed
an unredacted copy of his settlement agreement to a co-worker.
In its December 8, 1999 final decision, the agency concluded that a copy
of complainant's settlement agreement was included in the investigative
file of another employee's EEO complaint. The agency determined, however,
that it did not breach the settlement agreement because complainant's
settlement agreement was essential evidence in the discrimination
complaint filed by complainant's co-worker. In addition, the agency
found that complainant was not harmed by the agency's action.
The record reveals that when a position for a computer specialist
became available, complainant and a co-worker applied. Pursuant to the
priority consideration provision of the settlement agreement, the agency
only forwarded complainant's application to the selecting official.
After determining that complainant was qualified, the selecting official
chose complainant for the position. As a result of her non-selection,
the co-worker filed a discrimination complaint against the agency.
During the investigation of the co-worker's complaint, the agency
disclosed the details of complainant's settlement agreement to the EEO
Office and included an unredacted copy of the settlement agreement in
the investigative file of the co-worker's EEO complaint.
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).
In the present case, we find that the agency did not breach the October
22, 1997 settlement agreement. The settlement agreement states that
the final agreement will not be shared with any other party except EEO.
The record reveals that the agency disclosed the terms of the settlement
agreement to the EEO Office, as permissible by the plain language of the
agreement. Thus, we find that the inclusion of the settlement agreement
in the investigative file of a co-worker's EEO complaint did not breach
the terms of the confidentiality provision which allowed for disclosure
of the settlement agreement to the EEO Office.
Accordingly, the agency's decision finding that it did not breach the
settlement agreement was proper and is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0800)
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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)
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
September 26, 2000
__________________
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
______________________________
1On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply
to all federal sector EEO complaints pending at any stage in the
administrative process. Consequently, the Commission will apply
the revised regulations found at 29 C.F.R. Part 1614 in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.