Larry J. Maddux, Complainant,v.Hershel W. Gober, Acting Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionSep 26, 2000
01a02112 (E.E.O.C. Sep. 26, 2000)

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.