01976838
11-05-1998
Bradley Lyons, Appellant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.
Bradley Lyons, )
Appellant, )
) Appeal No. 01976838
v. ) Agency No. 93-1771
)
Togo D. West, Jr., )
Secretary, )
Department of Veterans )
Affairs, )
Agency. )
)
DECISION
Appellant timely appealed the agency's final decision not to reinstate
his complaint of unlawful employment discrimination that the parties
had settled. See 29 C.F.R. ��1614.402, .504(b); EEOC Order No. 960,
as amended.
ISSUE PRESENTED
The issue on appeal is whether the agency breached the settlement
agreement.
BACKGROUND
A review of the record reveals that appellant filed a formal EEO
complaint alleging that he had been subjected to unlawful discrimination.
Appellant and the agency settled the complaint on April 13, 1992.
The settlement agreement provided, in pertinent part, that:
The [agency] agrees to:
The Notice of Proposed Removal will be rescinded.
[Appellant] will be issued a letter of Reprimand based on the charges
in the Notice of Proposed Removal found to be upheld.
[Appellant] accepts reassignment to the position of Administrative
Officer, GS-341-12, Building Management Service.
3. Both parties also stipulate that:
This agreement shall be kept confidential and the terms herein shall
not be disclosed by either party; except to authorized EEO officials
or other officials responsible for implementing the agreement;
By letter to the agency dated May 22, 1997, appellant alleged that the
agency had breached the settlement agreement. Appellant asserted that
during a meeting held on April 24, 1997, in which reorganization of
the agency was being discussed, appellant's supervisor ("S1") violated
provision 3(c) of the settlement agreement by disclosing the fact that
appellant was assigned to his current position as a result of an EEO
settlement.
In its final decision dated August 21, 1997, the agency declined to
reinstate appellant's complaint, finding that it had not breached the
settlement agreement. The agency asserted that because discussions
at the meeting concerned the abolition of appellant's position, S1's
disclosure of appellant's EEO settlement amounted to discussions with
"other officials responsible for implementing the agreement," as
contemplated in the agreement.
On appeal, appellant submitted the signed affidavits of several persons
who were present at the April 24, 1997 meeting, which suggest that
S1's comments regarding the means appellant received his position
were unsolicited, and that no discussions were underway concerning the
abolition of appellant's position. Appellant asserts that S1's disclosure
was a breach of the settlement agreement.
ANALYSIS AND FINDINGS
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. In addition, 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 consistently held that settlement agreements are
contracts between appellant and the agency, and 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
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 present case, we find no support for the agency's assertion that
the persons who attended the meeting became "other officials responsible
for implementing the agreement" by virtue of the fact that discussions
in the meeting concerned the abolition of appellant's position.
Appellant provided evidence in the record indicating that the abolition
of appellant's position was not raised in the meeting, and that S1's
comments about the EEO settlement were unsolicited. Assuming arguendo
that discussions about the abolition of appellant's position did take
place, we nevertheless find that S1's disclosure was in breach of the
confidentiality provision. The plain language of the agreement provides
for disclosure of its terms only to authorized EEO officials or other
officials responsible for implementing the agreement. Nothing in
the record suggests that the persons who were present at the meeting
were the same officials responsible for implementing the agreement.
The settlement agreement does not protect appellant from being affected by
a reorganization of the agency. Consequently, any discussions concerning
the protection of appellant's position in such a reorganization do not
qualify as implementing the agreement, and the persons involved in the
discussion are not, therefore, transformed into "officials responsible
for implementing the agreement." Based on the foregoing, we find that
S1's disclosure of the terms of the EEO settlement in the April 24,
1997 meeting constituted breach of the settlement agreement.
Once a breach is found, as the case herein, the remedial relief is either
the reinstatement of the complaint for further processing or specific
enforcement of the settlement agreement. If an appellant's complaint is
reinstated for further processing, then the parties must be returned to
the status quo at the time that the parties entered into the settlement
agreement, which requires that an appellant return any benefits received
pursuant to the settlement agreement. See, e.g., Armour v. Department of
Defense, EEOC Appeal No. 01965593 (June 24, 1997); Komiskey v. Department
of the Army, EEOC Appeal No. 01955696 (Sept. 5, 1996). In the present
case, appellant repeatedly requested that his complaint be reinstated
for further processing. Consequently, on REMAND, appellant shall be
advised that in order to reinstate his complaint, a condition precedent
is the return of any benefits received through the execution of the
other provisions of the agreement. In view of this requirement, we
therefore give appellant the option, in accordance with the ORDER below,
of either returning the benefits conferred pursuant to the agreement and
reinstating the complaint, or keeping the benefits conferred pursuant
to the agreement and having the agreement specifically enforced.
ORDER
The agency is ORDERED to notify appellant of his option to return to
the status quo prior to the signing of the settlement agreement and
having his complaint reinstated or having the terms of the agreement
specifically enforced. The agency shall so notify appellant within
fifteen (15) calendar days of the date this decision becomes final.
The agency shall also notify appellant that he has fifteen (15) calendar
days from the date of his receipt of the agency's notice within which
to notify the agency of his choice. Appellant shall be notified that
in order to return to the status quo ante, he must return any benefits
received pursuant to the agreement. The agency shall determine any payment
due appellant, or return of consideration or benefits due from appellant,
within thirty (30) calendar days of the date this decision becomes final,
and shall include such information in the notice to appellant.
If appellant elects to return to the status quo ante and he returns any
monies or benefits owing to the agency, as specified above, the agency
shall resume processing appellant's complaint from the point processing
ceased pursuant to 29 C.F.R. �1614.108 et seq. If appellant elects not
to return to the status quo ante, i.e., not to return any consideration
owing the agency, the agency shall notify appellant that the terms of
the settlement agreement will be specifically enforced.
A copy of the agency's notice to appellant regarding his options,
including the determination of consideration due or owing, as well as a
copy of either the correspondence reinstating the complaint for processing
or the correspondence notifying appellant that the terms of the agreement
will be specifically enforced, must be sent to the Compliance Officer,
as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0595)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action.
The report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the appellant. If the agency does not comply with the Commission's
order, the appellant may petition the Commission for enforcement of
the order. 29 C.F.R. �1614.503(a). The appellant also has the right
to file a civil action to enforce compliance with the Commission's
order prior to or following an administrative petition for enforcement.
See 29 C.F.R. ��1614.408, 1614.409, and 1614.503(g). Alternatively,
the appellant has the right to file a civil action on the underlying
complaint in accordance with the paragraph below entitled "Right to File
A Civil Action." 29 C.F.R. ��1614.408 and 1614.409. A civil action for
enforcement or a civil action on the underlying complaint is subject to
the deadline stated in 42 U.S.C. �2000e-16(c) (Supp. V 1993). If the
appellant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. �1614.410.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (R0993)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court. It is the position of the Commission that 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. You should be aware, however, that courts in some
jurisdictions have interpreted the Civil Rights Act of 1991 in a manner
suggesting that a civil action must be filed WITHIN THIRTY (30) CALENDAR
DAYS from the date that you receive this decision. To ensure that your
civil action is considered timely, you are advised to file it WITHIN
THIRTY (30) CALENDAR DAYS from the date that you receive this decision
or to consult an attorney concerning the applicable time period in the
jurisdiction in which your action would be filed. In the alternative,
you may file a civil action AFTER ONE HUNDRED AND EIGHTY (180) CALENDAR
DAYS of the date you filed your complaint with the agency, or filed your
appeal with the Commission. 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.
Filing a civil action will terminate the administrative processing of
your complaint.
RIGHT TO REQUEST COUNSEL (Z1092)
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:
Nov. 5, 1998
______________________________
DATE Ronnie Blumenthal, Director
Office of Federal Operations