01994654
04-07-2000
Otis R. Myles, Complainant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.
Otis R. Myles, )
Complainant, )
)
v. ) Appeal No. 01994654
) Agency No. 970395
Togo D. West, Jr., )
Secretary, )
Department of Veterans Affairs, )
Agency. )
____________________________________)
DECISION
On May 7, 1999, complainant filed a timely appeal with this Commission
from a final decision (FAD) by the agency dated April 7, 1999,
finding that it was in compliance with the terms of the November 20,
1992 settlement agreement into which the parties entered.<1> See 64
Fed. Reg. 37,644, 37,659, 37,660 (1999)(to be codified and hereinafter
referred to as EEOC Regulation 29 C.F.R. � 1614.402); 29 C.F.R. �
1614.504(b).
The settlement agreement provided, in pertinent part, that:
(2)(b) Changes in tour of duty will conform to Medical Center Policy #115
as management agreed to in a prior settlement agreement on March 13, 1991.
This includes having fair and equitable rotation among its supervisors
and giving the supervisors the length of any reassignments to the best
of management's knowledge. [Complainant's] tour of duty is now Monday
through Friday from 7:00 a.m. to 3:30 p.m. If his tour of duty is changed
to evenings, nights or weekends, all supervisors should rotate through
these shifts for the same length of time as [complainant]. If the tours
of duty are changed, [complainant] will not be the first to rotate.
The issue of whether the agency breached this portion of the November 20,
1992 settlement agreement was first brought before this Commission in
1996. Complainant argued that provision 2(b) was breached when his tour of
duty was changed to an evening, night or weekend shift, but weekend and
corridor crew supervisors were not thereafter required to rotate through
these shifts for the same length of time as he. In its final decision
(FAD #1), the agency argued that weekend and corridor crew supervisors
were not referenced in the settlement agreement and thus not included
in the rotation requirement. Our prior decision held that because the
record did not contain a copy of Medical Center Policy #115, it was
impossible to determine whether the agency breached provision 2(b).
See Myles v. Department of Veterans Affairs, EEOC Appeal No. 01971899
(February 18, 1999). We therefore vacated the agency's decision finding
that it did not breach the settlement agreement and ordered the agency to
supplement the record with a copy of Medical Center Policy #115 (Policy
#115) on remand. The agency was ordered to then issue a new decision
determining whether a breach of the settlement agreement occurred.
It is this FAD (FAD #2), issued April 7, 1999, that is the subject of
the current appeal.<2>
In FAD #2, the agency concluded that the agreement was not breached
because Policy #115 does not specify whether weekend and corridor crew
supervisors are subject to rotating shifts. In so concluding, the agency
quoted the following portion of Policy #115:
Service Chiefs will advise each employee affected by a change of tour
of duty at least one week before the beginning of the administrative
workweek. In an emergency situation, tours may be changed without
notice.
We fail to see how this quotation is relevant to the issue in question.
We note, furthermore, that while the agency recently supplemented the
record with a copy of Policy #115, it did so almost a year after the
Commission requested the supplemented file. We admonish the agency for
this untimely response to the Commission's order.
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).
In the instant case, the settlement agreement requires that �all
supervisors� rotate shifts for the same length of time as complainant,
in certain circumstances. The agency admitted that it did not follow
this requirement in relation to weekend and corridor crew supervisors,
arguing that the agreement did not include these supervisors. While the
settlement agreement incorporates Policy #115, the agency correctly noted
in FAD #2 that this policy does not specify whether weekend and corridor
crew supervisors are subject to rotating shifts. We find that a policy
that fails to specify whether weekend and corridor crew supervisors are
omitted from rotation shifts cannot be used to limit the meaning of
the term �all supervisors� in the settlement agreement in question,
even if that policy is incorporated into the settlement agreement.
The agency, therefore, breached provision 2(b) of the settlement
agreement when it omitted weekend and corridor crew supervisors from
the rotation shift. Accordingly, the agency's finding of no settlement
breach is reversed and the matter is remanded to the agency for further
processing in accordance with the ORDER below.
ORDER
The agency is ORDERED to specifically perform the terms of the November
1992 settlement agreement, as interpreted herein. The agency shall
notify complainant, within thirty (30) calendar days from the date
this decision becomes final, that the terms of the settlement agreement
will stand. A copy of the agency's notice to complainant must be sent
to the Compliance Officer as referenced below.
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 (M0300)
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); 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 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).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION
(R1199)
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 WITHIN NINETY (90) CALENDAR DAYS from the date
that you receive this decision. 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 (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:
4/07/00 ________________________________
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_____________ _______________________
Date Equal Employment Assistant
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 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.
2 Complainant's appeal statement clearly indicates that he is appealing
the agency's April 1999 final decision, which concluded that the November
1992 settlement agreement had not been breached. We note, however, that
in addition to containing documents pertaining to the settlement breach
issue, the record also contains documents pertaining to a different
case, Agency No. 97-10. This second case involves an admonishment
received by complainant on September 11, 1996. A previous decision
issued by the Commission, Myles v. Department of Veterans Affairs,
EEOC Appeal No. 01981083 (November 13, 1998) appears to have resolved
the admonishment issue. Accordingly, we believe that the inclusion of
documents relating to it was a mistake on the part of the agency and we
advise the agency to review its records to confirm the closed status of
Agency Case No. 97-10.