Peter F. Romano, Complainant,v.Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionMar 14, 2000
01991651 (E.E.O.C. Mar. 14, 2000)

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.