Max W. Collier, Complainant,v.Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionJun 25, 2009
0120091641 (E.E.O.C. Jun. 25, 2009)

0120091641

06-25-2009

Max W. Collier, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.


Max W. Collier,

Complainant,

v.

Eric K. Shinseki,

Secretary,

Department of Veterans Affairs,

Agency.

Appeal No. 0120091641

Agency No. 200400052008102915

DECISION

Complainant filed a timely appeal with this Commission from a final

decision (FAD) by the agency dated January 23, 2009, finding that it

was in compliance with the terms of the November 6, 2008 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.

The settlement agreement provided, in pertinent part, that the agency

would:

2(a) Issue a policy describing the expectations for supervisors

and employees within the Office of Human Resources and Administration.

The policy will be issued within 30 calendar days of the effective date

of this agreement.

(b) Provide [complainant] with an excellent performance rating

for fiscal year 2008. Along with the rating, the complainant will

receive an award. The gross award amount is estimated to be $3203.00.

Payment will be made within 30 calendar days of the effective date of

this agreement.

In an electronic sent to the agency's EEO office, complainant alleged

that the agency was in breach of provisions 2a and 2b of the settlement

agreement, and requested that the agency specifically implement their

terms. Specifically, complainant alleged that the agency failed to comply

with the time frames agreed to the agreement between the parties.

In its January 11, 2009 FAD, the agency concluded that it had not

breached the agreement as alleged. The agency states in its final

decision that with respect to compliance with provision 2a, the agency

provided complainant with a copy of the Principle for Productivity and

Good Customer Service Memorandum/Policy issued on January 16, 2009,

which describes the expectations for agency supervisors and employees.

Moreover, the agency indicates that in compliance with provision 2b, on

November 10, 2008, complainant received a copy of his revised Performance

Appraisal in accordance with the agreement. In addition, the record

demonstrates that on December 30, 2008, the agency submitted a request

for a lump sum payment to complainant of $3203.00. The record reveals

that the lump sum payment was deposited into complainant's bank account

on January 9, 2009. The record further discloses that in letters to

complainant dated December 19 and 20 2008, the agency asked complainant to

explain how the delay in complying with provisions 2a and 2b harmed him.

The agency maintains that complainant failed to respond to the agency's

request.

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 O 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 instant case, the record indicates that the agency performed its

obligations under the agreement. Complainant has provided no evidence

that the agency failed to substantially comply with the agreement.

In that regard, we are not persuaded that the agency's delay in complying

with the specific provisions of the agreement at issue herein, amounted

to a breach of any portion of the agreement.

For the reasons set forth herein, the Commission finds that complainant

has failed to demonstrate that the agency breached the agreement

as alleged. Accordingly, the agency's determination of compliance

is affirmed.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M1208)

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 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 (S0408)

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 (Z1008)

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

June 25, 2009

__________________

Date

2

0120091641

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

4

0120091641