0520090492
08-20-2009
Mukund L. Gai, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Mukund L. Gai,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Request No. 0520090492
Appeal No. 0120091644
Agency No. 200J05502007100392
DENIAL
Complainant timely requested reconsideration of the decision in Mukund
L. Gai v. Department of Veterans Affairs, EEOC Appeal No. 0120091644
(May 15, 2009). EEOC Regulations provide that the Commission may, in its
discretion, grant a request to reconsider any previous Commission decision
where the requesting party demonstrates 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. See 29 C.F.R. � 1614.405(b).
In our previous decision we found that complainant failed to establish,
by a preponderance of the evidence, that the agency breached a settlement
agreement by refusing to process a formal EEO complaint. Specifically,
we found that an August 20, 2007 settlement agreement resolved the
formal EEO complaint which was pending at the time of the settlement
agreement. We also found that complainant clearly agreed to withdraw
all pending EEO complaints. Further, we found that the writing of the
settlement agreement was plain and unambiguous on its face. As a result,
we affirmed the agency's decision not to reinstate complainant's complaint
of unlawful employment discrimination.
In his request for reconsideration, complainant asserts that
the Commission's decision was clearly erroneous because the
settlement agreement was ambiguous and required extrinsic evidence
for interpretation. We find that the plain language of paragraph
2 of the agreement requires the withdrawal of all pending claims
"...of whatever nature in whatever forum, against the Agency...," and
therefore encompasses the formal EEO complaint which was pending at the
time that the agreement was reached. Although the clause in paragraph
2 which requires all future claims be waived is invalid, this clause is
severable pursuant to paragraph 12 of the settlement agreement. We also
find that paragraph 8 of the settlement agreement does not conflict
with paragraph 2. Paragraph 8 simply states that the agreement may not
be used to serve as precedent by any person in any other proceeding.
Further, the discrepancy in the use of the pronoun "her" as opposed to
"his" in the settlement agreement is immaterial. The plain language
of the settlement agreement clearly states who the intended parties
are, and this error does not alter the terms or effectiveness of the
agreement. After reconsidering the previous decision and the entire
record, the Commission finds that the request fails to meet the criteria
of 29 C.F.R. � 1614.405(b), and it is the decision of the Commission to
DENY the request. The decision in EEOC Appeal No. 0120091644 remains
the Commission's decision. There is no further right of administrative
appeal on the decision of the Commission on this request.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P0408)
This decision of the Commission is final, and there is no further right
of administrative appeal from the Commission's decision. 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.
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
August 20, 2009
Date
2
0520090492
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
3
0520090492