01A43518_r
11-10-2004
William E. Nicholas, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.
William E. Nicholas v. Department of Veterans Affairs
01A43518
November 10, 2004
.
William E. Nicholas,
Complainant,
v.
Anthony J. Principi,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A43518
Agency No. 2004-0309-2001101765
DISMISSAL OF APPEAL
Complainant filed a timely appeal with this Commission from an agency
decision, dated April 21, 2004, finding that it was in compliance with
the terms of the March 26, 2002 settlement agreement into which the
parties entered. See 29 C.F.R. � 1614.402; 29 C.F.R. � 1614.504(b);
and 29 C.F.R. � 1614.405.
The March 26, 2002 settlement agreement provided, in pertinent part, that:
(5) [The agency] agrees to recommend the reassignment of [complainant]
to one of the following five offices or an office mutually agreeable to
[the agency] and [complainant] by August 1, 2002.
1. Baltimore
2. Little Rock
3. Louisville
4. Denver
5. St. Paul
[The agency] will prepare and submit the nomination package within 30
days of the accepted reassignment offer.
(6) [The agency] agrees that an SES-level increase will be recommended
for [complainant], if any individual in VBA receiving the same performance
rating is recommended for an SES-level increase for performance year2002.
On March 6, 2003, complainant contacted the agency and alleged that
provisions (5) and (6) had been breached. Complainant requested
that the agency specifically implement the terms of the agreement or,
alternatively, reinstate his complaint.
In a final decision, dated May 5, 2003, the agency determined that
it was in compliance with provision (5). Specifically, the agency
found that while the August 1, 2002 deadline was not met, complainant
did receive the reassignment on December 15, 2002. According to the
agency, complainant acknowledged that the provision was being honored
and advised the agency to suspend its investigation into provision (5).
Regarding provision (6), the agency concluded that although complainant
was rated as fully successful, and another employee with the same
rating was recommended for an SES level increase, complainant was not
recommended for the SES level increase. However, the agency stated that
complainant's recommendation was to be initiated within 30 days of receipt
of the decision. It further noted that the agreement did not address
the approval or disapproval of such recommendation and any disputes over
that matter would be considered a new event and not a breach claim.<1>
Complainant filed an appeal from the agency's May 5, 2003 decision.
On appeal, the Commission determined that complainant withdrew his
breach claim of provision (5). Consequently, the prior appeal did not
address it. Regarding provision (6), the Commission found evidence in
the record that the Director recommended complainant for a SES level
increase for performance year 2002, as required by the agreement.
While the Commission noted that the agency took a year to take action,
the Commission concluded that any breach was cured by the recommendation.
Nicholas v. Department of Veterans Affairs, Appeal No. 01A33717 (October
23, 2003).
Thereafter, in February 2004, complainant again alleged breach of
provision (6). According to the EEO Counselor's Report, complainant
claimed that when he received the investigative file for a prior case
he discovered that he was denied a pay level increase. Additionally,
complainant claimed that he learned that management submitted a letter
to the Performance Review Board referring to his prior EEO activity.
On April 21, 2004, the agency issued a final decision that is
the subject of the instant appeal. Therein, the agency found that
complainant's breach claim was barred under the principle of res judicata.
Alternatively, the agency determined that provision (6) was not breached.
According to the agency, complainant alleged that the spirit and intent
of the agreement was breached when the agency stated that they were
only recommending him for the SES level increase to satisfy a prior EEO
complaint. The agency determined that the issue raised by complainant
had already been addressed by the Commission in Nicholas v. Department
of Veterans Affairs, Appeal No. 01A33717 (October 23, 2003).
Alternatively, the agency determined that provision (6) was not breached
because the instant settlement agreement was silent regarding the
approval or disapproval of the recommendation; and that an action
regarding the denial of the increase is a new act and not part of
the breach claim. Finally, the agency noted that complainant sought
counseling and filed a formal complaint regarding the non-receipt of
the SES level increase (Case No. 200L-0020-2003102106).
On appeal, complainant contends that his �first appeal [regarding breach
of provision (6)] concerned the timeliness or the lack of a recommendation
for the pay increase�, while the instant appeal �concern[s] the language
used in the recommendation.� According to complainant, �another breach�
(emphasis added) occurred when the agency included �wording that referred
to my past activity in the EEO complaint process.� The complainant
argues that the intent of the March 26, 2002 agreement was violated
when the agency indicated that the recommendation was only being made
to satisfy a prior complaint.
In response, the agency argues that the alleged breach claim concerns a
new claim that occurred after the March 26, 2002 settlement was entered.
Therefore, the agency states, it is properly being treated as a separate
complaint. The agency states that even if the claim could be processed
as an allegation of breach, the agency contends no breach occurred.
The agency stated that the reference to the agreement contained in the
recommendation was to justify why the recommendation was being made
out-of-cycle.
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).
In the instant case, complainant contends that provision (6) of the
March 26, 2002 settlement agreement was breached when the agency's
recommendation referred to his prior EEOC activity. The Commission
finds that complainant's concerns should have been raised during his
previous allegation of breach, wherein he alleged that the agency failed
to recommend him for an SES level increase in violation of provision (6).
We previously addressed what is essentially the same claim in Nicholas
v. Department of Veterans Affairs, Appeal No. 01A33717 (October 23, 2003).
As noted above, in the prior appeal, the Commission determined that the
agency did recommend complainant for the SES level increase as required.
If complainant was concerned with the language utilized by the agency
in fulfilling its obligation, under provision (6), he should have raised
it during the prior appeal. Consequently, we agree with the agency that
the instant appeal is barred under the principle of res judicata.
Accordingly, complainant's appeal is DISMISSED..
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
November 10, 2004
__________________
Date
1Additionally the agency noted that, on March 19, 2003, complainant met
with an EEO Counselor regarding the non-receipt of the SES level increase.
A formal complaint, Case No. 200L-0020-2003102106, was filed on the
matter on April 18, 2003.