Norvell Chambers, Complainant,v.Hershel W. Gober, Acting Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionDec 22, 2000
01a05358 (E.E.O.C. Dec. 22, 2000)

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.