01A33662_r
07-20-2004
Paz A. Encomienda, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.
Paz A. Encomienda v. Department of Veterans Affairs
01A33662
July 20, 2004
.
Paz A. Encomienda,
Complainant,
v.
Anthony J. Principi,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A33662
Agency No. 200K-0537-2001116340/200K-1812
DECISION
Complainant filed a timely appeal with this Commission from a final
decision by the agency dated July 2, 2003, finding that it was in
compliance with the terms of the March 27, 2003 settlement agreement
into which the parties entered.
The settlement agreement provided, in pertinent part, that:
Restore any sick leave used by Complainant from October 1, 1995 to
February 28, 2000; provided that such restored leave shall be restored
to Complainant effective April 19, 2003. Such restored leave will be
creditable for purposes of CSRS service credit as provided by law, but,
shall in no manner, serve to reduce CSRS service credit previously as
credited to complainant by agency.
Authorize Complainant's application for early retirement . . . which
shall be effective May 3, 2003.
By letter to the agency dated May 1, 2003, complainant alleged that the
agency breached provision 1 of the settlement agreement. Specifically,
complainant alleged that the agency failed to restore her leave by April
19, 2003.
In its July 2, 2003 decision, the agency concluded the sick leave was
restored on May 2, 2003. The agency stated that complainant submitted
the necessary documentation to commence the retirement process on May
30, 2003.
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).
Regarding provision 1, the agency stated that when it was brought to their
attention that they had not restored complainant's leave, they immediately
complied on May 2, 2003, and pursued follow-up with complainant to insure
that complainant would complete the documentation required of complainant
to effect complainant's retirement. The Commission determines that
the agency has substantially complied with provision 1 of the agreement
and that complainant has not shown a material breach of the agreement.
By restoring the leave less than two weeks after the agreed upon date,
we find that the agency has, in the instant circumstances, substantially
complied with provision 1 of the agreement. The Commission has previously
held that failure to satisfy a time frame specified in a settlement
agreement does not prevent a finding of substantial compliance,
especially when all required actions were subsequently completed.
See Lazarete v. Department of Interior, EEOC Appeal No. 01954274.
As there is no evidence of bad faith in the record, we find that the
agency has substantially complied with the agreement.
Accordingly, the agency's decision finding no breach of the settlement
agreement is AFFIRMED.
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
July 20, 2004
__________________
Date
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 Opportunity