Perry R. Williams, Complainant,v.Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionApr 6, 2000
01990448 (E.E.O.C. Apr. 6, 2000)

01990448

04-06-2000

Perry R. Williams, Complainant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.


Perry R. Williams, )

Complainant, )

)

v. ) Appeal No. 01990448

) Agency No. 98-1811

Togo D. West, Jr., )

Secretary, )

Department of Veterans Affairs, )

Agency. )

____________________________________)

DECISION

On October 19, 1998, complainant filed an appeal with this Commission

from a final decision (FAD) by the agency dated October 9, 1998, finding

that it was in compliance with the terms of the March 29, 1996 settlement

agreement into which the parties entered.<1> The appeal is accepted as

timely for purposes of review. 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).

In the settlement agreement, the agency agreed, in pertinent part, to:

Transfer [complainant] to Environmental Management Service, Health Care

Technician, GS-4/3 effective March 31, 1996.

[Complainant] will not be subjected to reprisal or retaliatory actions

as a result of initiating and/or settling this discrimination complaint.

By letter to the agency dated February 3, 1998, complainant alleged that

the agency was in breach of the settlement agreement. Specifically,

complainant alleged that the agency asked complainant to �volunteer�

for a lower grade during a reorganization, and retaliated against him

by threatening him with insubordination if he failed to write letters

against the EEO complaints of co-workers. Complainant contends that he

received a demotion from the reorganization.

In its October 9, 1998 FAD, the agency concluded that it had not breached

the settlement agreement. The agency noted that complainant's claims

allege harm from subsequent events, not from their failure to perform

provisions of the settlement agreement. The agency found that such

claims should be investigated as separate claims of discrimination, not as

allegations of breach. The agency also found that it placed complainant

in the position contemplated under the settlement agreement on March 31,

1996, but that complainant was reassigned when the entire department was

reorganized on February 1, 1998. The agency also notes that its finding

of no breach does not end the processing of claims being treated as a

new complaint of discrimination.

The record includes an SF-52 �Notification of Personnel Action� form,

effective March 31, 1996. This form reassigns complainant to a GS-0640-04

Health Technician position. In a separate SF-52, effective August 2,

1998, complainant was reassigned to a position as a GS-0305-4 File Clerk.

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).

EEOC regulation 29 C.F.R. � 1614.504 provides that if a complainant

believes that the agency has failed to comply with the terms of a

settlement agreement, he may request that the terms of the agreement

be specifically implemented, or, alternatively, that the complaint be

reinstated for further processing. However, the Commission has held

that a complaint which alleges reprisal or further discrimination in

violation of a settlement agreement's "no reprisal" clause, is to be

processed as separate complaints and not as a breach of settlement.

Bindal v. Department of Veterans Affairs, EEOC Request No. 05900225

(August 9, 1990); 29 C.F.R. � 1614.504(c). Therefore, the agency's

decision to address the reprisal claims as a new complaint of

discrimination was correct.

The agency did not otherwise breach the agreement. Complainant served in

the position contemplated in the settlement, but the agreement did not

provide that complainant would remain in the position forever, or that

he would never be reassigned again. The Commission has held that if a

settlement agreement did not include specific terms of the employment

relationship which could have been agreed upon, it would be improper to

interpret the reasonable intentions of the parties as binding the agency

to the terms thereof forever. See Parker v. Department of Defense, EEOC

Request No. 05910576 (August 30, 1991). Further, the Commission has held

that such subsequent reassignments state new claims of discrimination,

not allegations of breach. See Holley v. Department of Veterans Affairs,

EEOC Request No. 05950842 (November 13, 1997); Gish v. Department of

the Army, EEOC Request No. 05950918 (June 2, 1997).

CONCLUSION

Accordingly, the agency's decision is AFFIRMED.

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 (S1199)

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 6, 2000

____________________________

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 of mailing. I certify that

the decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

_______________ __________________________

Date 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.