01991651
03-14-2000
Peter F. Romano, Complainant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.
Peter F. Romano, )
Complainant, )
)
v. ) Appeal No. 01991651
) Agency No. 96-0548
Togo D. West, Jr., )
Secretary, )
Department of Veterans Affairs, )
Agency. )
______________________________)
DECISION
Complainant timely appealed the agency's final decision not to reinstate
his complaint of unlawful employment discrimination that the parties
had settled.<1> See 64 Fed. Reg. 37,644, 37,659-37,660 (1999) (to
be codified and hereinafter referred to as 29 C.F.R. �� 1614.402(a),
1614.504); EEOC Order No. 960, as amended.
The record indicates that complainant filed a formal complaint concerning
his wrongful discharge from employment on August 18, 1995. Thereafter,
on May 1, 1997, the parties entered into a settlement agreement, which
provided, in pertinent part, that:
The agency would rescind the August 18, 1995 discharge; process
complainant's letter of resignation dated March 21, 1997; and pay
complainant one-half (�) of the amount in earnings and benefits he would
have been entitled to receive from the period of August 16, 1995 through
March 21, 1997. All applicable deductions would be made from the final
amount as prescribed by current law and regulation. Interest on this
amount should be included into the final computation as prescribed by
current law and regulations.
By letter dated February 26, 1998, complainant alleged that the agency
breached the settlement agreement. Specifically, complainant indicated
that the deductions were improperly tabulated; he had not been provided
with a copy of said deductions; taxes were not deducted as prescribed
by law; interest was not paid; and health care deductions and retirement
benefits were not properly addressed.
In its November 19, 1998 final decision, the agency stated that it
complied with the terms of the settlement agreement. Therein, the agency
indicated that it mistakenly over paid complainant an additional sum of
$4,772.57, that should have been withheld for federal and state taxes.
The agency, thus, asked complainant to return that amount and it would,
then, recalculate taxes, fringe benefits, and interest on the back pay
award accordingly.
Complainant, reiterating his previous arguments, appeals.
In response to complainant's appeal, the agency states that complainant
was entitled to $38,855.10 earnings and benefits ($51,226.92 gross
earnings plus $4,150.36 lump sum for accrued leave credits less $16,522.18
applicable deductions/taxes) for the relevant time period from August 16,
1995, through March 21, 1997. The agency indicates that complainant,
thus, should have received $21,564.01 ($19,427.55 (� of $38,855.10)
plus $2136.46 interest) under the terms of the settlement agreement.
The agency states that due to the misunderstanding regarding the nature
of the monetary award in the settlement agreement, complainant was
erroneously overpaid $24,200.12, rather than $21,564.01, through two
checks in the amounts of $19,427.55 on June 23, 1997, and $4,772.57 on
November 23, 1997. In support of its contentions, the agency submits
a copy of applicable data sheets, including the computation/calculation
for the payments.
EEOC Regulation 29 C.F.R. � 1614.504 provides that if the complainant
believes that the agency failed to comply with the terms of a settlement
agreement, the complainant should notify the Director of Equal Employment
Opportunity, in writing, of the alleged noncompliance with the settlement
agreement, within thirty (30) days of when the complainant knew or should
have known of the alleged noncompliance. The complainant may request that
the terms of the settlement agreement be specifically implemented or,
alternatively, that the complaint be reinstated for further processing
from the point processing ceased.
The agency shall resolve the matter and respond to the complainant,
in writing. If the agency has not responded to the complainant, in
writing, or if the complainant is not satisfied with the agency's attempt
to resolve the matter, the complainant may appeal to the Commission for
a determination as to whether the agency has complied with the terms of
the settlement agreement or final decision.
The Commission has held that settlement agreements are contracts between
the complainant and the agency and it is the intent of the parties as
expressed in the contract, and not some unexpressed intention, that
controls the contract construction. Eggleston v. Department of Veterans
Affairs, EEOC Request No. 05900795 (August 23, 1990). In addition, the
Commission generally follows the rule that if a 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 v. Building Engineering Services,
730 F.2d 377 (5th Cir. 1984). The Commission has followed this rule
when interpreting settlement agreements. The Commission's policy in
this regard is based on the premise that the face of the agreement best
reflects the understanding of the parties.
Upon review, we find that the agency did not breach the settlement
agreement at issue. The record reveals that complainant should have
received $21,564.01, which is comprised of � of his entitled earnings and
fringe benefits, including interest, from the time period of August 16,
1995, through March 21, 1997, under the terms of the settlement agreement.
The record reflects that to figure out this amount, the agency properly
took into consideration applicable deductions, including federal and state
taxes, and fringe benefits. Complainant received $24,200.12 ($19,427.55
on June 23, 1997, and $4,772.57 on November 23, 1997) which was $2,636.11
more than that to which he was entitled under the settlement agreement.
Accordingly, the agency's final decision finding no settlement breach
is hereby AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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). 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:
March 14, 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 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.