Linda L. Klamm, Appellant,v.Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionMar 22, 1999
01971792 (E.E.O.C. Mar. 22, 1999)

01971792

03-22-1999

Linda L. Klamm, Appellant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.


Linda L. Klamm v. Department of Veterans Affairs

01971792

March 22, 1999

Linda L. Klamm, )

Appellant, )

)

v. ) Appeal No. 01971792

) Agency No. 96-2122

Togo D. West, Jr., )

Secretary, )

Department of Veterans )

Affairs, )

Agency. )

______________________________)

DECISION

On December 18, 1996, appellant filed a timely appeal with this Commission

from a final decision (FAD) by the agency dated November 19, 1996, finding

that it was in compliance with the terms of the April 3, 1996 settlement

agreement into which the parties entered. See 29 C.F.R. ��1614.402,

.504(b); EEOC Order No. 960, as amended.

The settlement agreement provided, in pertinent part, that in exchange

for the withdrawal of appellant's EEO complaint, the agency agreed to:

(a) Remove a co-worker (CW1) from overall administrative and interpretive

review and control of all [of appellant's] rating decisions.

(b) Direct all requests for performance-related issues to [appellant's]

direct supervisor only.

(c) As opportunities for increased responsibility and authority present

themselves, upon [appellant's] request, [she] will be considered.

By letter to the agency dated May 14, 1996, appellant alleged that the

agency was in breach of the settlement agreement, and requested that

the agency resume processing of her prior complaint from the point

processing ceased. Specifically, appellant alleged that on May 10,

1996, she was advised that her evaluation was being held up for Central

Office (CO) review due to two Statistical Quality Control (SQC) errors

that CW1 had found against her, and that the CO decision on this issue

would make a difference as to whether she received an "outstanding" or

"fully successful" evaluation. Appellant asserted that the two cases

which were under CO review had been discussed prior to entering the

settlement agreement and that it was agreed that the SQC errors found by

CW1 on those cases would not be considered for appellant's evaluation.

As an alternative settlement of her EEO complaint, appellant sought

transfer from her division.

In its November 19, 1996 FAD, the agency concluded that CW1 was removed

from any control or administrative or interpretive review of appellant's

rating decisions and that since the agreement all of appellant's cases

have been reviewed by another Hearing Officer.<1>

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 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, we find that there is insufficient information

in the record to determine whether the agency was in compliance

with the settlement agreement. Appellant contended that CW1 signed

off on several of appellant's rating decisions after the date of the

settlement agreement, and submitted documents in the record purporting

to support this contention. Although the documents appear to contain

CW1's signature, appellant provided no evidence showing that the case was

assigned to her. Similarly, the agency provided no evidence in the record

supporting its assertion that it was in compliance with the agreement.

Absent information supporting or rebutting appellant's allegations of

noncompliance, we are unable to determine whether the agency was in

breach of the settlement agreement.

Accordingly, the agency's decision is hereby VACATED and this matter

REMANDED to the agency for further processing in accordance with this

decision and the Order below.

ORDER

The agency is ORDERED to take the following actions:

Within fifteen (15) calendar days of the date this decision becomes final,

the agency shall undertake a supplemental investigation to determine if

it was in compliance with the settlement agreement. The agency shall

notify appellant that she is to provide the agency with any evidence

she has supporting her allegation of breach within fifteen (15) days of

receipt of the agency's notice.

Within forty-five (45) calendar days of the date this decision becomes

final, the agency shall issue a notice of processing and/or a new FAD

concerning appellant's allegations of breach. If the FAD determines that

the agency was in compliance, the agency shall specifically address all

evidence submitted by appellant pursuant to paragraph (a) above.

A copy of the agency's notice of processing and/or new FAD 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:

March 22, 1999

____________________________

DATE Ronnie Blumenthal, Director

1The agency further determined that allegations of discrimination

relating to the issue of the transfer from appellant's division and her

non-selection as Rating Board Section Chief, must be brought to the

attention of an EEO Counselor as a new EEO complaint. However, the

record contains no references to these issues by appellant in her letter

alleging breach, and appellant did not address these issues on appeal.

The Commission notes, however, that the agreement is silent with regard

to possible transfers for appellant, and only guarantees consideration

for opportunities for increased responsibility and authority, not actual

placement. See Johnson v. United States Postal Service, EEOC Request No.

05900663 (August 27, 1990).