01971676
11-23-1999
Ola Sanders, Complainant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.
Ola Sanders, )
Complainant, )
)
v. ) Appeal No. 01971676
) Agency No. 91-864
Togo D. West, Jr., )
Secretary, )
Department of Veterans )
Affairs, )
Agency. )
)
DECISION
Complainant filed the instant appeal with the Commission alleging that
the agency had breached the settlement agreement entered into by the
parties.<1>
Complainant and the agency entered into a settlement agreement in June
1991 in which complainant agreed to withdraw her EEO complaint and the
agency agreed in pertinent part to:
"Refer the complainant under priority consideration procedures for the
next Warehouse Worker position WG 6907-GS03 target GS-3."
By letter dated September 23, 1996 complainant, through
her representative, informed the agency that it had breached the
settlement agreement by failing to promote complainant to the position
of Warehouse Worker the next time such a position became available.
Complainant alleged that the agency failed to comply with the provision
of the settlement agreement providing that complainant would be given
priority consideration for the next available Warehouse Worker position.
Complainant's letter also contends that she has not received any of the
benefits under the agreement and that she is entitled to retroactive
pay from the time the first warehouse position became available.
Complainant's representative maintains that the agency has kept
complainant confused concerning the status of the pending EEO matter as
well as the agency's compliance with the settlement agreement.
In a letter to complainant's representative dated November 21, 1996,
the agency maintained that it had complied in full with the terms of
the settlement. Specifically, the agency indicated that complainant was
in fact given priority consideration for the next available Warehouse
Worker position but that, however, she was not selected for the position.
The agency indicated further that the settlement agreement required the
agency only to refer complainant under priority consideration for the next
available position, which meant that she was referred non-competitively
and considered for a position before the selecting official received a
list of eligible candidates. Here, the agency maintains that it complied
with the provisions of the settlement agreement when complainant was
non-competitively referred for an available position on October 30,
1991, but not selected.
EEOC Regulation 29 C.F.R. �1614.504(a) provides that any settlement
agreement knowingly and voluntarily agreed to by the parties shall be
binding on both parties. If the complainant believes that the agency
has failed to comply with the terms of a settlement agreement, then the
complainant shall notify the EEO Director of the alleged noncompliance.
See 29 C.F.R. �1614.504(a). The complainant may request that the terms of
the settlement agreement be specifically implemented or request that the
complaint be reinstated for further processing from the point processing
ceased. Id.
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 re Chicago & E.I. Ry. Co., 94 F.2d 296 (7th
Cir. 1938). In reviewing settlement agreements to determine if there is
a breach, the Commission is often required to ascertain the intent of the
parties and will generally rely on the plain meaning rule. Wong v. United
States Postal Service, EEOC Request No. 05931097 (April 29, 1994)(citing
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, then its meaning must be determined from the
four corners of the instrument without any resort to extrinsic evidence
of any nature. Id. (citing Montgomery Elevator v. Building Engineering
Service, 730 F.2d 377 (5th Cir. 1984)).
In the instant case, complainant alleges that the agency failed to comply
with a portion of the settlement agreement between the parties, when
she was not promoted to the position of Warehouse Worker. The agency's
response to complainant's claim states that while complainant was not
selected for the position, the provisions of the agreement were met
with respect to giving complainant priority consideration for the next
available Warehouse Worker position. The record, however, contains no
documents or affidavits from appropriate agency personnel showing whether
any Warehouse Worker positions became available since the agreement
was entered into. There are no documents or affidavits in the record
from appropriate agency officials explaining the circumstances of any
warehouse position that was filled by anyone other than complainant after
the agreement was entered into. Therefore, the Commission can not find,
based on the record, that the agency has complied with the disputed
provision of the agreement. The Commission shall remand the matter so
that the agency can supplement the record with evidence showing that
the agency has complied with that portion of the agreement regarding
priority consideration.
The agency's decision finding that the settlement agreement has not been
breached is VACATED and we REMAND the matter to the agency for further
processing in accordance with this decision and applicable regulations.
ORDER
The agency shall supplement the record with evidence showing that the
agency has complied with the provision of the settlement regarding
complainant's priority consideration. Such evidence shall include:
(1) Documents and/or affidavits from appropriate agency personnel
showing whether any Warehouse Worker positions have become available
since the agreement was entered into.
(2) Documents and/or affidavits from appropriate agency officials
explaining the circumstances of any Warehouse Worker position that
was filled by anyone other than complainant after the agreement was
entered into.
Within sixty (60) calendar days of the date this decision becomes final
the agency shall issue a new decision determining whether the agency
breached the settlement agreement. A copy of the agency's new decision
must be sent to the Compliance Officer referenced herein.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K1199)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the complainant. If the agency does not comply with the Commission's
order, the complainant may petition the Commission for enforcement
of the order. 29 C.F.R. �1614.503(a). The complainant also has the
right to file a civil action to enforce compliance with the Commission's
order prior to or following an administrative petition for enforcement.
See 64 Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. ��1614.407, 1614.408) and 29 C.F.R. �1614.503(g).
Alternatively, the complainant has the right to file a civil action on
the underlying complaint in accordance with the paragraph below entitled
"Right to File A Civil Action." 29 C.F.R. ��1614.407 and 1614.408. A
civil action for enforcement or a civil action on the underlying complaint
is subject to the deadline stated in 42 U.S.C. �2000e-16(c)(Supp. V 1993).
If the complainant files a civil action, the administrative processing of
the complaint, including any petition for enforcement, will be terminated.
See 64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. �1614.409).
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 (R0993)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court. 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 23, 1999
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATION 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 ASSISTANT1 On 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.