01a53176
08-09-2005
Greta L. Price, Complainant, v. R. James Nicholson, Secretary, Department of Veterans Affairs, Agency.
Greta L. Price v. Department of Veterans Affairs
01A53176
August 9, 2005
.
Greta L. Price,
Complainant,
v.
R. James Nicholson,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A53176
Agency No. 200J-0552-2004104062
DECISION
Complainant filed a timely appeal with this Commission from a final
decision (FAD) by the agency dated February 28, 2005, finding that the
parties had not entered into a binding settlement agreement. See 29
C.F.R. � 1614.402; 29 C.F.R. � 1614.504(b); and 29 C.F.R. � 1614.405.
The agency found that, following her initial EEO counseling session,
complainant agreed to attempt to resolve her complaint through mediation.
On October 22, 2004, complainant reached an agreement with her supervisor,
the terms of which were reduced to writing and signed by complainant
and her supervisor. The last sentence of the agreement provided, in
pertinent part, that:
(1) This agreement will become effective after legal review by the
station attorney and signature of the Medical Center Director.
After the legal review by the station attorney, the agreement was
rewritten by the attorney and presented to complainant for her signature.
Complainant, however, objected to the rewritten agreement and refused to
sign it. Complainant was subsequently issued a Notice of Right to File a
Discrimination Complaint and on December 19, 2004, complainant filed her
Formal Complaint. The agency found that the October 22, 2004 agreement
was not a legal and binding agreement, despite the parties signatures,
because complainant's supervisor was not authorized to sign for the
agency and also because of the clause above making the effectiveness of
the agreement contingent on it being reviewed by the station attorney
and signed by the Medical Center Director. The agency further found
that since the initial agreement was not binding and complainant had
refused to sign the later agreement, no agreement existed.
On appeal, complainant argues that the second agreement added language
that was not included in the first and that the station attorney was only
to review the agreement, not rewrite it. She further states that the last
sentence in the signed agreement, referenced above, was not part of her
intended agreement with her supervisor but �was added to be deceptive.�
We note however that the sentence in question appears immediately above
complainant's signature and she does not deny that she was aware of it.
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, the agreement clearly stated that it would be
contingent on further review by the agency attorney and the signature of
the Medical Center Director. Since the agreement was never signed by
the Medical Center Director, it never became effective. Accordingly,
complainant's allegation fails to state a claim, since without an
agreement there can be no breach. We further note in this regard that
the agency has already resumed processing of the complaint from the
point where processing had previously ceased and that complainant has
since filed a Formal Complaint. Accordingly, the FAD is affirmed.
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
August 9, 2005
__________________
Date