01992739
11-30-1999
Mostafa Kenawy, Complainant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.
Mostafa Kenawy v. Department of Veterans Affairs
01992739
November 30, 1999
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 Assistant
1On 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.
2The agency had also previously advised the complainant to seek EEO
counseling by a June 4, 1998 letter from the medical director.