Maurice D. Levy, Appellant,v.Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionOct 14, 1999
01985667 (E.E.O.C. Oct. 14, 1999)

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