Mostafa Kenawy, Complainant,v.Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionNov 30, 1999
01992739_r (E.E.O.C. Nov. 30, 1999)

01992739_r

11-30-1999

Mostafa Kenawy, Complainant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.


Mostafa Kenawy, )

Complainant, )

)

v. ) Appeal No. 01992739

Togo D. West, Jr., )

Secretary, )

Department of Veterans Affairs, )

Agency. )

____________________________________)

DECISION

On February 10, 1999, complainant filed a timely appeal with this

Commission from a final decision (FAD) by the agency dated October

8, 1998, but not received by complainant's counsel until February 9,

1999, finding that it was in compliance with the terms of the May 30,

1997 settlement agreement into which the parties entered.<1> See 64

Fed. Reg. 37,644, 37,659, 37,660 (1999)(to be codified and hereinafter

referred to as EEOC Regulations 29 C.F.R. ��1614.402, .504(b)); EEOC

Order No. 960, as amended.

The settlement agreement provided, in pertinent part, that:

(2) The Department of Veterans affairs agrees to:

(A) Remove from employee's official personnel file, and any other

system of records maintained at the medical center, the written

counseling dated February 3, 1997, reprimand dated February 26, 1997

and proposed suspension dated April 11, 1997.

Both parties also stipulate that:

(E) Reprisal or retaliation will not be taken against the complainant or

any participant in this case, for exercising their right to participate

in the EEO process.

By letter to the agency dated January 16, 1998, complainant alleged that

the agency was in breach of the settlement agreement. The complainant

alleged that the agency had violated the agreement by engaging in a

continuing course of discriminatory conduct and reprisal towards him.

Specifically, the complainant cited the unequal rotation of Acting Chief

of Service responsibilities and the denial of his requests for leave

as evidence of the continuing disparate treatment he is experiencing.

In its October 8, 1998 FAD, the agency concluded that it was in compliance

with the settlement agreement. The agency argued that since the incidents

complainant was complaining about occurred subsequent to the signing of

the settlement agreement, they must be addressed in a separate complaint

of retaliation and advised the complainant to seek EEO counseling.<2>

On appeal, complainant reiterates his position that the settlement

agreement was breached by the repeated discriminatory distribution of

Acting Chief responsibilities and other discriminatory treatment.

According to 64 Fed. Reg. 37,644, 37,656 (1999)(to be codified and

hereinafter referred to as EEOC Regulation 29 C.F.R. �1614.504(a)), 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 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).

In the present case, complainant alleges further acts of discrimination

violate the terms of the settlement agreement. Specifically, complainant

alleges breach of the no reprisal clause contained in the agreement.

Commission regulations provide that complaints that subsequent acts of

discrimination violate a settlement agreement shall be processed as

separate complaints and not as a breach of the settlement agreement.

29 C.F.R. �1614.504(c). See Warren v. Department of the Army,

EEOC Request No. 05960552 (April 10, 1997). Thus, with regard to

complainant's contention that he has been subjected to subsequent acts

of reprisal and further acts of discrimination, he should bring these

matters to the attention of an EEO counselor to be processed as separate

complainants, rather than as allegations that the settlement agreement

has been violated.

Accordingly, the agency's decision is hereby 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).

RIGHT TO FILE A CIVIL ACTION (S0993)

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 filed your appeal with the

Commission. 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. 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:

November 30, 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 Assistant1On 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.

2 The agency had also previously advised the complainant to seek EEO

counseling by a June 4, 1998 letter from the medical director.