0120072401
08-10-2007
Oretha D. Potts, Complainant, v. R. James Nicholson, Secretary, Department of Veterans Affairs, Agency.
Oretha D. Potts,
Complainant,
v.
R. James Nicholson,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120072401
Agency No. 200L06672006103269
DECISION
Complainant filed a timely appeal with this Commission from a final
decision (FAD) by the agency dated March 8, 2007, finding that it was in
compliance with the terms of the October 17, 2006 settlement agreement
into which the parties entered. See 29 C.F.R. � 1614.402; 29 C.F.R. �
1614.504(b); and 29 C.F.R. � 1614.405.
The settlement agreement provided, in pertinent part, that:
1. The Agency agrees to contact the Chief, Nutrition and Food Service
[complainant's supervisor], prior to November 1, 2006, and recommend and
encourage that he allow complainant time to volunteer in the Mental Health
Service to gain additional experience in Service Level Administrative
Responsibilities.
2. Complainant agrees to look for additional educational opportunities on
her own and seek the Chief, Mental Health Service Mentoring ("MHS Chief")
concerning the value these opportunities may provide. The Agency through
the Chief, Mental Health Service agrees to set aside time to review the
Complainant's educational opportunities and provide verbal feedback.
The Mentoring shall being no later than November 1, 2006 and end no
earlier than May 1, 2006.
By e-mail to the agency dated November 30, 2006, complainant alleged
that the agency was in breach of the settlement agreement. Specifically,
complainant alleged that the agency failed to allow her time to volunteer
in the Mental Health Service to gain the additional experience in Service
Level Administrative Responsibilities. The Administrative Officer for
Mental Health Service was out on extended leave during November 2006,
and complainant was unable to reach her. During that time, complainant
claimed that her opportunity to volunteer in Mental Health Services was
circumvented.
In its March 8, 2007 FAD, the agency concluded that the agency did
not breach the settlement agreement. The agency indicated that, in
compliance with the agreement, complainant's supervisor was contacted
prior to November 1, 2006, and he was encouraged to permit her to
volunteer in the Mental Health Service. Further, the agency indicated
that complainant was offered opportunities in the Mental Health Service
in December 2006, as well as in January 2007. Therefore, the agency
concluded that it did not breach the settlement agreement.
This appeal followed. Complainant asserted that she was not allowed time
to volunteer in Mental Health Service during the month of November 2006.
Complainant argued that the agency's failure to allow her to volunteer was
in violation of the terms of the settlement agreement. As a result of the
alleged breach, complainant seeks to reinstate her original complaint.
The agency responded to complainant's appeal requesting that the
Commission affirm its finding of no breach of the settlement agreement.
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 O 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).
In the instant case, we find that the agency did not breach the settlement
agreement. We note as to provision (1), the agency agreed to recommend
and encourage complainant's supervisor to allow her time to volunteer.
It appears the agency was in full compliance with this provision.
In provision (2), the MHS Chief agreed to mentor complainant for the
period of November 1, 2006 through May, 1, 2007. The settlement agreement
did not specifically provide complainant with volunteer opportunities
in the month of November 2006. Therefore, the agency's failure to give
complainant volunteer opportunities in November 2006, is not a breach of
the settlement agreement. Further, the record indicates that complainant
was afforded volunteer opportunities starting in December 2006, as well
as invitations to attend training in Mental Health Service. For these
reasons, we conclude that the agency has not breached the settlement
agreement and AFFIRM the agency's final decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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
August 10, 2007
__________________
Date
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0120072401
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120072401