01985667
10-14-1999
Maurice D. Levy, Appellant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.
Maurice D. Levy, )
Appellant, )
)
v. ) Appeal No. 01985667
)
Togo D. West, Jr., )
Secretary, )
Department of Veterans Affairs, )
Agency. )
_________________________________)
DECISION
Appellant filed the instant appeal, received by the Commission on July 14,
1998, alleging that the agency breached the settlement agreement entered
into by the parties on February 20, 1997. Appellant submitted a copy of
a letter dated November 25, 1997, in which he notified the agency's EEO
Director that the agency breached the settlement agreement. There is
no indication that the agency has issued a decision on the matter and
by letter dated September 18, 1998 the agency stated that no decision
had yet been issued.
The February 20, 1997 settlement agreement provided that:
[Appellant] will remain as a staff surgeon on the surgical service during
the entire time that he is reassigned to the Tallahassee Outpatient
Clinic (TOPC), even if the surgery service at the Lake City VAMC were
to close. [Appellant] will retain his surgical privileges during his
reassignment at the TOPC in accordance with Clinical Executive Board
(CEB) guidelines. This reassignment will be effective March 30, 1997.
. . . [Appellant] agrees that his performance of surgical duties and
endoscopies and conduct will be at at least a satisfactory level for those
four years. When performing primary care [appellant's] performance will
be at at least a minimally satisfactory level.
. . . .
The [agency] will support [appellant's] effort to build a sound surgical
presence at the TOPC, including provision for IV sedation, regional and
general anesthesia. All necessary equipment will be provided.
First, appellant alleged that the agency breached the agreement by failing
to provide him with an evaluation. Second, appellant alleged that
the agency breached the agreement by failing to allow him to perform
any surgery other than minor elective surgical procedures, and that
he �has been functioning essentially as a primary care physician and a
dermatologist," rather than as a surgeon as specified in the agreement.
Finally, appellant alleged that the agency did not support his effort to
"build a sound surgical presence at the TOPC" and by failing to provide
him with necessary equipment.
EEOC Regulation 29 C.F.R. �1614.504(a) provides that any settlement
agreement knowingly and voluntarily agreed to by the parties shall be
binding on both parties. If the complainant believes that the agency
has failed to comply with the terms of a settlement agreement, then the
complainant shall notify the EEO Director of the alleged noncompliance
"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. Id.
Settlement agreements are contracts between the appellant and the agency
and it is the intent of the parties as expressed in the contract, and not
some unexpressed intention, that controls the contract's construction.
Eggleston v. Department of Veterans Affairs, EEOC Request No. 05900795
(Aug. 23, 1990); In re Chicago & E.I. Ry. Co., 94 F.2d 296 (7th
Cir. 1938). In reviewing settlement agreements to determine if there is
a breach, the Commission is often required to ascertain the intent of the
parties and will generally rely on the plain meaning rule. Wong v. United
States Postal Service, EEOC Request No. 05931097 (Apr. 29, 1994) (citing
Hyon v. United States Postal Service, EEOC Request No. 05910787 (Dec. 2,
1991)). This rule states that if the writing appears to be plain and
unambiguous on its face, then its meaning must be determined from the
four corners of the instrument without any resort to extrinsic evidence
of any nature. Id. (citing Montgomery Elevator v. Building Engineering
Service, 730 F.2d 377 (5th Cir. 1984)).
Regarding the agency's purported breach of the settlement agreement by
failing to provide him with an evaluation, the Commission finds that there
is no requirement that the agency provide an evaluation of appellant.
Although the agreement requires that appellant perform at a certain level,
the agency is not obligated in the agreement to provide any formal or
informal evaluation of appellant. Therefore, we find that the agency
did not breach the agreement by allegedly failing to provide appellant
with an evaluation.
The agency has not supplied a decision, brief, or evidence showing
whether the agency has complied with the agreement by allowing appellant
to remain as a staff surgeon, by supporting appellant's effort to "build
a sound surgical presence," and by providing all necessary equipment.
Therefore, the Commission finds that it is necessary to remand
these matters for supplementation of the record with such evidence.
29 C.F.R. �1614.504(c).
Accordingly, the Commission finds that the agency did not breach the
February 20, 1997 settlement agreement by allegedly failing to provide
appellant with an evaluation. However, the remainder of appellant's
breach allegations (failure to allow him to perform surgery other than
minor procedures; and failure to support his efforts to build a sound
surgical presence and not providing him with necessary equipment) are
REMANDED to the agency for further processing in accordance with this
decision and applicable regulations.
ORDER
The agency shall supplement the record with evidence showing whether the
agency has complied with the February 20, 1997 settlement agreement by
(1) allowing appellant to remain as a staff surgeon, (2) by supporting
appellant's effort to "build a sound surgical presence," and (3) by
providing all necessary equipment. Within 60 days of the date this
decision becomes final the agency shall issue a new decision as to
whether the agency breached the February 20, 1997 settlement agreement.
A copy of the agency's new decision shall be sent to the Compliance
Officer referenced herein.
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. �l6l4.604(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 your appeal with the
Commission, until such time as the agency issues its final decision
on your complaint. 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:
October 14, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations