01993381
03-16-2000
Annie M. Jones, Complainant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.
Annie M. Jones, )
Complainant, )
)
v. )
) Appeal No. 01993381
Togo D. West, Jr., ) Agency No. 93-2511
Secretary, )
Department of Veterans Affairs, )
Agency. )
______________________________)
DECISION
INTRODUCTION
Complainant filed a timely appeal with this Commission for a determination
regarding whether the agency violated the terms of a settlement agreement
which resolved an EEO complaint filed against the agency.<1> Accordingly,
we find that the appeal is timely (see 29 C.F.R. � 1614.401(d) and 64
Fed. Reg. 37,644, 37,660 (1999) (to be codified and hereinafter referred
to as 29 C.F.R. � 1614. 504(a) and (b))), and is accepted in accordance
with 64 Fed. Reg. 37,644, 37,659 (1999) (to be codified at 29 C.F.R. �
1614.405).
ISSUE PRESENTED
The issue on appeal is whether the agency violated the terms of its
settlement agreement with complainant.
BACKGROUND
The Commission, in Jones v. Department of Veterans Affairs, EEOC Appeal
No. 01961780 (September 24, 1998), found that the agency discriminated
against the complainant. As relief, the agency was order to inform
complainant that she was entitled to reassignment to her original position
in Special Chemistry, she had the right to submit evidence in support
of her claim for compensatory damages and to receive a final decision
on the issue, and that she was entitled to attorney's fees if she was
represented by an attorney.
On November 30, 1998, the agency requested that complainant's attorney,
B-1, provide documentation to support his fee request. According to the
agency, B-1 informed the agency that he disagreed with its request for
supporting documentation and demanded a copy of the regulations which
authorized the agency's request. B-1 also contacted the Commission
requesting assistance in obtaining compliance.<2>
On January 11, 1999, during a hearing on an unrelated case, complainant
agreed to settle the relief that was ordered by the Commission in EEOC
Appeal No. 01961780. Complainant agreed to accept $18,000.00 in payment
for attorney's fees and a lump sum payment of $30,000.00 compensatory
damages. Complainant further indicated that she did not want to be
reassigned to her original position in Special Chemistry.
On March 8, 1999, B-1 filed the present action with the Commission.
Although he erroneously termed this action a �Petition For Enforcement,�
complainant maintained that the agency had failed to comply with the
terms of the settlement agreement. Although the settlement agreement
did not specify a time period in which the agency had to comply with
its obligations, B-1, on appeal, stated �the normal total processing
time is about 30 days. Complainant should therefore have received her
check on or about February 11, 1999.� B-1 further stated that:
when the 30 days had elapsed I called the Agency and was told that the
settlement agreement had never been processed. In other words, it had
not gone to fiscal services for payment to be made. I also called the
Director's office and spoke with [an agency official] who told me to
fax [sic] him a copy of the settlement agreement and that my client,
the complainant, and I should receive payment in two weeks. On March 3,
1999, I again called the Agency to check on the status of the payment.
I learned on March 5, 1999, that the settlement agreement still had not
been processed. Fiscal services had received nothing that would allow
them to make payment.
B-1 maintained that �the action by the agency [was] deliberate and
malicious. At no point has anyone tried to process the settlement
agreement. The procedure is simple and merely requires the agreement
to be sent to the appropriate unit within VA for effectuating payment.�
Finally, B-1 stated that �if the agency had done what it was supposed to
do my client should have received her check by no latter than February
11, 1999,� or by March 5, 1999, if it began processing the matter on
February 16, 1999.
On July 15, 1999, the agency presented evidence that on March 23, 1999,
checks in the amount of $18,000.00 and $30,000.00 were issued to B-1
and complainant, respectively. A copy of the agency's letter was also
provided to B-1.
ANALYSIS AND FINDINGS
Settlement agreements are contracts between the complainant and the agency
to which ordinary rules of contract construction apply. 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 any resort to extrinsic
evidence of any nature. See Montgomery Elevator v. Building Engineering
Services, 730 F.2d 377 (5th Cir. 1984).
After a careful review of the record, we find that the agency did not
violate the terms of the settlement agreement. We note in this regard
that the settlement agreement did not provide a time frame in which
the agency had to issue the two checks. In such circumstances, the
Commission has held that performance of the contract is required within
a reasonable amount of time. See Gonzales v. Department of the Treasury,
EEOC Request No. 05930921 (February 10, 1994). We do not find, under the
facts presented here, that the agency took an unreasonable amount of time
to carry out its obligations. If B-1 felt that the agency should have
processed the payments within 30 days than he should have insured that
language to that effect was included in the settlement agreement.
CONCLUSION
Accordingly, the agency's determination that it did not breach the
terms of its settlement agreement with complainant was proper and it is
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 16, 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.
2See Compliance File No. 06982094.