01a05358
12-22-2000
Norvell Chambers, Complainant, v. Hershel W. Gober, Acting Secretary, Department of Veterans Affairs, Agency.
Norvell Chambers v. Department of Veterans Affairs
01A05358
December 22, 2000
.
Norvell Chambers,
Complainant,
v.
Hershel W. Gober,
Acting Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A05358
DECISION
On July 19, 2000, this Commission received a letter from Norvell
Chambers (complainant) alleging that the agency was not in compliance
with the terms of a Settlement Agreement (Agreement). Specifically,
complainant alleged that the agency breached the attorney's fees portion
of the Agreement by conspiring with his attorney, whom he fired during
settlement negotiations, to avoid paying attorney's fees directly to
complainant.<1> See 29 C.F.R. � 1614.402; 29 C.F.R. � 1614.504(b);
and 29 C.F.R. � 1614.405.
It appears from the record that complainant may have sent this allegation
directly to this Commission, without first providing the agency with
written notice that he believed a breach had occurred, as required by
29 C.F.R. � 1614.504(a). However, we note that the record is difficult
to interpret, in that complainant and the agency exchanged numerous
communications pertaining to the Agreement both before and after it
was signed, some of which expressed complainant's displeasure with
the agency's behavior in regard to the Agreement. Moreover, there is
evidence that at some point the agency agreed to amend the Agreement
and that complainant and the agency then got into a dispute over the
terms of the amendment. Because we are unable to determine the order
of events discussed in the record, we will move to a discussion of the
merits of complainant's breach allegation.
After a careful review of the record, we find that complainant failed to
establish that the agency breached the Settlement Agreement. The record
contains several versions of the Settlement Agreement, but only one
that is signed by both complainant and the agency's representative.
This Agreement, dated April 14, 2000, requires, in pertinent part, that:
8. complainant's attorney must bill the agency in order to receive
attorney's fees. She will receive attorney's fees in an amount not to
exceed $2,000.00 within 45 calendar days of submitting an itemized fee
statement to the agency representative. The Itemized statement must
include her federal tax identification number and the necessary account
information for direct deposit.
EEOC Regulation 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).
Here, the agency provided a copy of a Settlement Agreement signed by both
parties, which provides for the payment of attorney's fees as quoted
above. Complainant provided no evidence that the agency breached this
Agreement, but rather argues that the Agreement submitted by the agency
is not the final Settlement Agreement. Complainant does not, however,
provide any evidence to establish that this Agreement was modified.
Instead, complainant provides a copy of the Agreement with handwritten
notations, presumably added by him, which state that his prior attorney
refused to provide the agency with a bill. He also provides a copy of the
Agreement which includes an amendment relating to his retirement date.
While both these copies are signed by the agency's representative (AR),
there is nothing to indicate that AR agreed to the handwritten notations
or that complainant agreed to the amendment, as his signature is not on
either of these altered copies of the Agreement. Only the original April
14, 2000 Agreement contains the signatures of both complainant and AR
establishing that they both agreed to all the provisions noted therein.
This Agreement requires complainant's attorney to submit an itemized
bill prior to receiving attorney's fees. The agency noted that it stands
ready, willing, and able to comply with this portion of the Agreement,
as soon as an itemized bill is received from complainant's attorney.
It is apparent that complainant had intentions other than those set forth
in the April 14, 2000 Agreement. However, as noted above, it is the
intent of the parties as expressed in the contract, not some unexpressed
intention, that controls the contract's construction. See Eggleston,
supra. While the Commission has previously found that an agency's bad
faith in implementing a settlement agreement constituted a breach of
the agreement, there is no evidence of bad faith on the agency's part
in the case at hand. See Todd v. Social Security Administration, EEOC
Request No. 05950169 (June 12, 1997)(agency acted in bad faith when it
did not sign the settlement agreement until over three months after
complainant's signature was obtained); Wong v. United States Postal
Service, EEOC Request No. 05931097 (April 29, 1994) (agency acted in bad
faith when it focused on language in the settlement agreement requiring
that complainant be provided a causal appointment within "this calendar
year," while clearly ignoring the remaining language "as soon as possible"
to justify its decision to hire other individuals for casual appointments
during the disputed time period). Rather, it seems that complainant and
his attorney are involved in a dispute that is delaying the processing
of the Settlement Agreement. The agency is not responsible for this
dispute.
Accordingly, after a careful review of the record, we AFFIRM the agency's
determination that it did not breach the Settlement Agreement.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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 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 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 (S0900)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
December 22, 2000
__________________
Date
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 29 C.F.R. Part 1614 in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.