0120091644
05-15-2009
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.
Appeal No. 0120091644
Agency No. 200J-0550-2007100392
DECISION
Upon review, the Commission finds that the agency's decision, dated
January 9, 2009, not to reinstate complainant's complaint of unlawful
employment discrimination that the parties had settled is proper.
See 29 C.F.R. � 1614.504. The record indicates that on December 26,
2006, complainant filed the instant complaint alleging discrimination
based on race (Asian-Pacific Islander), sex (male), and age (over 40)
when in March 2005, he stepped-down from his position of Chief, Imaging
Service (Radiology/Nuclear Medicine) and on September 15, 2006, he was
not granted Physicians Tier 2 Pay. The record also indicates that
on August 20, 2007, the parties entered into a settlement agreement
resolving complainant's complaints, including his subsequent complaint,
Agency No. 200J-0550-2007102506, which concerned performance standards
and Physician Performance pay. The settlement agreement provided,
in pertinent part, that:
1. The Complainant hereby knowingly and voluntarily withdraws all pending
EEO complaints at whatever stage in whatever forum in their entirety.
2. The Complainant hereby waives and withdraws any and all actions,
claims, complaints, . . ., EEO complaints . . . appeals and proceedings
of whatever nature in whatever forum, against the Agency . . . which are
now . . . asserted by her . . . regarding her employment with the Agency,
including but not limited to, claims of discrimination based on Race
(Asian-Indian).
3. The Complainant and [Responsible Management Official] will work to
reach mutual agreement on performance standards based on local criteria
in keeping with criteria comparable within the [agency] system by August
14, 2007.
4. The Complainant and [Responsible Management Official] will determine
appropriate quantitative indicators for use in the Physician Performance
Par by August 27, 2007.
5. The Complainant and [Responsible Management Official] will meet
quarterly on performance issues beginning September 2007.
On July 9, 2008, complainant claimed that the agency breached
the settlement agreement when the agency refused to process Agency
No. 200J-0550-2007100392 even though the agreement was intended only
to resolve Agency No. 200J-0550-2007102506. On September 30, 2008,
the agency issued a decision, stating that the agreement only resolved
the matters raised in Agency No. 200J-0550-2007102506.
Complainant had also submitted a letter dated June 11, 2008, to the
Commission claiming that the agency breached the agreement. In EEOC
Appeal No. 0120082824 (December 18, 2008), request for reconsideration
denied, EEOC Request No. 0520090247 (March 19, 2009), the Commission found
that the agency did not breach the agreement and did not improperly stop
processing any EEO complaint.
On January 9, 2009, the agency issued a decision rescinding the
September 30, 2008 decision and ceasing the processing of the instant
complaint, Agency No. 200J-0550-2007100392. The agency found that Agency
No. 200J-0550-2007100392 was resolved by the August 20, 2007 settlement
agreement. Complainant now appeals from the agency's January 9, 2009
decision.
The Commission has held that settlement agreements are contracts between
the complainant and the agency and it is the intent of the parties
as expressed in the contract, and not some unexpressed intention, that
controls the contract's construction. Eggleston v. Department of Veterans
Affairs, EEOC Request No. 05900795 (August 23, 1990). In addition, the
Commission generally follows the rule that if a 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 v. Building Engineering Services,
730 F.2d 377 (5th Cir. 1984).
After a review of the record, we find that the August 20, 2007 settlement
agreement resolved Agency No. 200J-0550-2007100392 which was pending
at the time of the settlement agreement. In the settlement agreement,
complainant clearly agreed to withdraw all pending EEO complaints.
We find no ambiguity in the written agreement concerning the withdrawal
of all pending EEO complaints and therefore no need to look beyond the
settlement agreement itself to interpret the agreement.
Accordingly, the agency's January 9, 2009 decision finding that Agency
No. 200J-0550-2007100392 was encompassed within the August 20, 2007
settlement agreement 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
5/15/09
__________________
Date
2
0120091644
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013