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