01986087
12-08-1999
Michael Edney, Complainant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.
Michael Edney, )
Complainant, )
)
v. )
) Appeal No. 01986087
Togo D. West, Jr., )
Secretary, )
Department of Veterans )
Affairs, )
Agency. )
____________________________________)
DECISION
On August 4, 1998, complainant filed a timely appeal with this Commission
from a final agency decision (FAD), dated November 18, 1998,<1> finding
that it was in compliance with the terms of the June 10, 1998 settlement
agreement into which the parties entered. See 64 Fed. Reg. 37,644, 37,659
(1999) (to be codified at 29 C.F.R. �1614.402); 29 C.F.R. � 1614.504(b);
EEOC Order No. 960, as amended.<2>
The settlement agreement provided, in pertinent part, that:
(1) The Agency will provide Complainant priority consideration for any
WG-3 equivalent or above position that is posted for the next 24 months.
If no position opens for which Complainant is qualified and/or Complainant
is interested in over the next 24 months, Complainant will have the
option of either having a hearing or extending this Agreement for an
additional 24 months.
(2) It is understood and agreed that it is not a guarantee that the
Complainant will be chosen for the position. However, he will be
considered for the position before anyone else. A legitimate business
reason must be given by the selecting official for not placing Complainant
in the position. If the Complainant does not believe good faith was used
in his non-selection, he can call [an EEOC Administrative Judge] for
assistance. Additionally, Complainant can reopen case number 120-9809173X
and or file an Enforcement Action.
By letter to the agency dated July 28, 1998, complainant alleged that
the agency was in breach of the settlement agreement. Specifically,
complainant alleged that the agency failed to provide him priority
consideration pursuant to paragraphs 1 and 2 of the settlement agreement.
On November 18, 1998, the agency issued a FAD, finding no breach of
the settlement agreement. The agency determined that complainant was
given priority consideration for two positions. The agency stated that
complainant was not selected for one of the postings because he had
recently received a written counseling, which the agency determined
was a legitimate business reason for declining to offer complainant
the position.. The FAD indicated that complainant had been selected
for the second position. The record in this case contains a copy of a
memorandum dated August 24, 1998. Therein, an agency official indicates
that complainant was given priority consideration for a Housekeeping
Aid WG-3 position, and that complainant was selected for the position.
EEOC Regulation 64 Fed. Reg. 37,644, 37,660 (1999) (to be codified
at 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).
The Commission determines that the agency has complied with the settlement
agreement. The settlement language clearly states that complainant would
be given priority consideration for posted WG-3 positions, or higher
graded positions, for a twenty-four month period. The agreement does not
state that complainant would be guaranteed placement in such a position.
The record reflects that complainant was given priority consideration for
two positions, and that although he was not selected for one position,
he was selected for another. Therefore, the Commission determines
that the agency did not breach the settlement agreement. Accordingly,
the agency's decision finding no breach of the settlement agreement was
proper and is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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
64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. �1614.405). 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 64 Fed. Reg. 37,644, 37,661 (1999)
(to be codified and hereinafter referred to as 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 (S1199)
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:
Dec. 8, 1999
____________________________
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_______________________
_______________________
DATE
Equal Employment Assistant
1The record reveals that complainant's appeal was in response to a July
29, 1998 letter issued by the agency's attorney, informing complainant
that he was given priority consideration. Subsequently, the agency
issued a FAD with appeal rights.
2On 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 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at WWW.EEOC.GOV.