01981658
04-19-2000
Peggy J. Pendergraph-Lino, Complainant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.
Peggy J. Pendergraph-Lino v. Department of Veterans Affairs
01981658
April 19, 2000
Peggy J. Pendergraph-Lino, )
Complainant, )
)
v. ) Appeal No. 01981658
) Agency No. 96-0359
Togo D. West, Jr., )
Secretary, )
Department of Veterans Affairs, )
Agency. )
____________________________________)
DECISION
On December 19, 1997, complainant filed a timely appeal with this
Commission from a final decision (FAD) by the agency dated November 26,
1997, finding that it was in compliance with the terms of the April 1,
1997 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); and 64 Fed. Reg. 37,644, 37,659 (1999)(to be codified at
29 C.F.R. � 1614.405).
The settlement agreement provided, in pertinent part, that:
(1) the agency will promote complainant to a GS-13, Step 3, Auditor's
position effective September 17, 1995.
(2) The agency will pay complainant back pay retroactive to September 17,
1995, at the GS-13, Step 3 rate, payable through her attorney within
20 calendar days from the date of the settlement agreement (SA, or
the agreement).
(3) The agency will restore 120 hours of complainant's sick leave.
(4) The agency will provide complainant with a statement affirming
that it will continue to abide by applicable employment discrimination
laws and regulations and will not retaliate against her due to her EEO
participation.
(5) The agency will pay reasonable attorney's fees in the amount of
$3,000 to complainant's attorney; and will also pay the full cost of
the mediation session, which is $600, and mileage at the government rate.
(6) The agency will provide complainant with training not to exceed a
total expense of $3000. The training will be taken as follows: one week
during the remainder of calendar year (CY) 1997, and two weeks during
CY 1998.
In an extensive memorandum dated October 10, 1997, containing numerous
claims against the agency, complainant alleged, in pertinent part,
that the agency was in breach of the SA, "and all past EEO settlements
and complaints." Complainant alleged that the agency "has continued,
systematic, planned and collaborated management discrimination, reprisal,
harassment, assaults, adverse actions, and breach of all past EEO
Settlement agreements with [complainant]." Complainant alleged that the
incident that precipitated her claim of breach was a September 19, 1997
reprimand and subsequent loss of pay. She also alleged, inter alia,
ongoing harassment, a hostile work environment, denial of promotion
opportunities, and discriminatory performance appraisals. Complainant
alleged, e.g., that stress from the agency's alleged acts of reprisal
prevented her from using the $3,000 in training funds for "the unrealistic
one week window of calendar year 97 and two week window of CY98," in
accordance with the SA.
In its November 26, 1997 FAD, the agency concluded that it had not
breached the SA. The agency determined that complainant had not asserted
specific claims of breach by the agency beyond a claim of retaliation.
Therefore, the agency declared that complainant had to raise her claims
of reprisal in a separate complaint as required by the Commission's
regulations.
Complainant's appeal is essentially a reiteration of her breach
claims. There was no agency response to complainant's appeal.
Volume 64 Fed. Reg. 37,644, 37,656 (1999)(to be codified and hereinafter
referred to as 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). Ultimately, the complainant has the burden
of demonstrating noncompliance by the agency. See Moore v. Department
of the Navy, EEOC Request No. 05930694 (April 7, 1994).
In the present case, the Commission finds that complainant failed to
meet her burden of proving the agency breached the SA. We find, for
example, that complainant acknowledged in her breach claim itself that
the agency promoted her to a GS-13, Step 3, position and restored 120
hours of sick leave. We also find complainant presented no evidence
that the agency denied her training in violation of the SA.
The Commission concludes that complainant's claim of noncompliance is
a claim of acts of subsequent reprisal that should be processed as a
separate complaint. See 29 C.F.R. � 1614.504(c). Therefore, complainant
is advised to bring her claims to an EEO Counselor if she wants to pursue
those issues further.
Having reviewed the entire record, the arguments on appeal, including
those arguments not expressly addressed herein, and for the foregoing
reasons, the Commission hereby AFFIRMS the FAD.
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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)
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:
April 19, 2000
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
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.