0120072935
09-13-2007
Ronald E. Gayle, Complainant, v. R. James Nicholson, Secretary, Department of Veterans Affairs, Agency.
Ronald E. Gayle,
Complainant,
v.
R. James Nicholson,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120072935
Agency No. 2004-0590-2007100882
DECISION
Complainant filed an appeal with this Commission from a final decision
(FAD) by the agency dated April 24, 2007, dismissing his complaint
for failure to state a claim because it claimed breach of a settlement
agreement dated January 24, 2006. The FAD indicated that the breach of
settlement agreement claim would be separately processed by the agency.1
As the parties have addressed the breach claim and there is sufficient
information in the record to rule on it, this decision will address
both the FAD and the breach claim. See 29 C.F.R. � 1614.402; 29 C.F.R.
� 1614.504(b); and 29 C.F.R. � 1614.405.
The settlement agreement provided, in pertinent part, that:
(1) Complainant will resign from the agency effective September 1,
2006,
(2) the complainant waives any and all claims for back pay,
compensatory damages, attorney fees, interest on back pay, other interest,
and any other monetary amounts or other damages to which he might be
entitled due to the aforementioned employment by VAMC Hampton, except as
expressly provided in paragraph 4 herein, [terms in paragraph 4 follow]
(3) the agency agrees to promote complainant within his current
position to the grade of GS-5, step 8, effective August 7, 2004.
The agency agrees to promptly pay, as a lump sum, the amount of
$3,427.76...which represents the sum of the following amounts:
* $2,839.76 in back pay, as calculated on the attached Exhibit;
* $163.00 for State income taxes on the back pay; and
* $425.00 for Federal income taxes on the back pay.
The agency further agrees to pay complainant's share of his contributions
to the retirement fund due as a result of the back pay reflected on the
attached Exhibit.
Complainant writes that the settlement agreement closed his EEO complaint
alleging gender discrimination when he was not selected for a position.
He contacted an EEO counselor on December 26, 2006, claiming that he
was misled into signing the settlement agreement. According to the
counselor's report, complainant was told by a Chief of Human Resources
(Chief) as part of the settlement agreement that the agency would
repay a loan he took from his Civil Service Retirement System (CSRS),
and his monthly retirement, less deductions, would be $1,498.91 (gross
amount $1,583).
On October 15, 2006, according to complainant, he learned that his
retirement would be much less. The Office of Personnel Management (OPM)
sent complainant a letter with two options: repay his CSRS loan of
$27,735, which included interest, and receive a monthly gross pension
of $1,536; or receive a monthly pension of $725. Complainant contends
that he approached the Chief about this, and was initially told that
the agency would repay the loan, but it later reneged.
Complainant contacted an EEO counselor about this matter, and then
filed an EEO complaint alleging that he was discriminated against when
he received the revised retirement benefit report, the Chief later said
the agency would pay monies into his retirement account and then reneged,
and the agency failed to pay $27,735 into his CSRS account.
The FAD concluded that the complaint was actually a claim that the
agency breached the January 24, 2006, settlement agreement. We agree.
Complainant contends that as part of the settlement process the agency
incorrectly informed him that his monthly net retirement pay would be
$1,498.91, but it was actually much less. All the complaint allegations
regard this, and he relies on this in his claim that the agency should
repay his loan of $27,7352, and his claim of breach. We now turn to
the breach claim.
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 O 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).
Documentation in the record shows that the agency paid the back pay,
as promised in the settlement agreement, and contributed $284.80
toward complainant's CSRS. The agency represents that this was
complainant's share of his contributions to the retirement fund as a
result of the agreed back pay of $2,839.76. This is what was agreed to
in the settlement agreement. Complainant does not persuasively rebut
this. Complainant's claim that the agency promised to pay additional
monies toward his retirement is rebutted by the settlement agreement.
It explicitly states that only the monetary payments cited therein
would be paid, and the settlement agreement does not state in anyway
complainant's loan would be repaid.
The FAD is affirmed and complainant has not shown that the agency breached
the settlement agreement dated January 24, 2006.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 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 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 (S0900)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
September 13, 2007
__________________
Date
1 Complainant filed his appeal on June 13, 2007. We deem the appeal
to be timely filed because the FAD does not contain a certificate of
mailing and there is no documentation in the record on when the FAD was
received by complainant.
2 In an unsigned affidavit, the Chief explained that before he gave
the estimate of monthly retirement he asked complainant if he took any
loans against his CSRS, and complainant denied doing so. According to
the counselor's report, the Chief said that he learned after giving
the estimate that complainant borrowed against his retirement and had
a break in service.
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0120072935
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120072935