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.