Magdalena Kaczynska, Appellant,v.Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionFeb 11, 1999
01975320 (E.E.O.C. Feb. 11, 1999)

01975320

02-11-1999

Magdalena Kaczynska, Appellant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.


Magdalena Kaczynska v. Department of Veterans Affairs

01975320

February 11, 1999

Magdalena Kaczynska, )

Appellant, )

)

v. ) Appeal No. 01975320

)

Togo D. West, Jr., )

Secretary, )

Department of Veterans Affairs, )

Agency. )

_________________________________)

DECISION

Appellant filed the instant appeal from the agency's May 16, 1997 decision

finding that the agency did not breach the settlement agreement signed

by appellant on April 28, 1994. The settlement agreement provided in

part that the agency would:

[2]a. Implement a temporary rotation schedule for the position of Chief

of Gastrointestinal Section, Medical Service, Martinez Outpatient Clinic;

This rotation will be scheduled for one year intervals. [Appellant's]

rotation will be effective as of August 1, 1994, and end on July 31,

1995. [Person A's] rotation will begin August 1, 1995, and end July

31, 1996. The rotation will continue until a permanent Chief has

been selected. . . .

Both physician[s] will be given a key to the utility room;

Provide team-building training for ALL staff;

Provide the Caring and Courtesy Course for ALL staff . . .

Appellant alleged that the agency breached the settlement agreement

because she was appointed the position of Chief of Gastrointestinal (the

parties also refer to the title as Chief of Gastroenterology) Section

for only two weeks. In the May 16, 1997 decision the agency found that:

[Appellant] was on extended maternity leave when the Settlement Agreement

was to be activated. Due to her extended maternity leave [appellant]

agreed to delay the rotational assignment pending her return to duty

status. In compliance with the Settlement Agreement she was appointed as

Chief of Gastroenterology Section on September 21, 1995, with an effective

date of September 25, 1995 to September 24, 1996. On October 1, 1995,

a new Chief of Gastroenterology was selected . . . on a permanent basis,

thus satisfying Item 2a. and b. of the Settlement Agreement. Therefore,

we find no breach has occurred.

EEOC Regulation 29 C.F.R. �1614.504(a) provides that any settlement

agreement knowingly and voluntarily agreed to by the parties shall be

binding on both parties. If the complainant believes that the agency

has failed to comply with the terms of a settlement agreement, then the

complainant shall notify the EEO Director of the alleged noncompliance

"within 30 days of when the complainant knew or should have known of

the alleged noncompliance." 29 C.F.R. �1614.504(a). The complainant

may request that the terms of the settlement agreement be specifically

implemented or request that the complaint be reinstated for further

processing from the point processing ceased. Id.

Settlement agreements are contracts between the appellant and the agency

and it is the intent of the parties as expressed in the contract, and not

some unexpressed intention, that controls the contract's construction.

Eggleston v. Department of Veterans Affairs, EEOC Request No. 05900795

(Aug. 23, 1990); In re Chicago & E.I. Ry. Co., 94 F.2d 296 (7th Cir.

1938). In reviewing settlement agreements to determine if there is a

breach, the Commission is often required to ascertain the intent of the

parties and will generally rely on the plain meaning rule. Wong v. United

States Postal Service, EEOC Request No. 05931097 (Apr. 29, 1994) (citing

Hyon v. United States Postal Service, EEOC Request No. 05910787 (Dec. 2,

1991)). This rule states that if the writing appears to be plain and

unambiguous on its face, then its meaning must be determined from the

four corners of the instrument without any resort to extrinsic evidence

of any nature. Id. (citing Montgomery Elevator v. Building Engineering

Service, 730 F.2d 377 (5th Cir. 1984)).

On appeal appellant states that she "went on extended maternity," and

that the agency agreed to "reverse the order of acting assignments so

that Appellant would serve for one year as Chief upon her return to

employment . . ." Appellant argues that she was not informed that the

agency intended to select a permanent Chief prior to the expiration of

the first two yearly rotations. Appellant also argues that she was not

informed during her maternity leave that appellant would not be able to

remain in the acting Chief position for a full year rotation upon her

return.

The Commission finds that the intent of provision 2(b) was to provide

appellant with the opportunity to serve as Chief for one year. The

agency admits that appellant only served as Chief for approximately

one or two weeks. The record indicates that the agency agreed to

change the rotational schedule because of appellant's maternity leave.

The Commission finds that the agency breached the agreement by making

a permanent selection for Chief prior to August 1, 1996 and thereby

denying appellant the opportunity to serve as Chief until July 31, 1996.

The Commission finds that because a Chief has been selected, specific

implementation of the agreement is impractical. The other consideration

provided to appellant in the agreement is minimal. The Commission

finds that the most appropriate remedy for our finding of breach is

reinstatement of the underlying complaint. Therefore, we shall order

the agency to reinstate the settled complaint for further processing

from the point processing ceased. 29 C.F.R. �1614.504(c).

The agency's decision finding that the agency did not breach the

settlement agreement is REVERSED and we REMAND the matter to the agency

for further processing in accordance with this decision and applicable

regulations.

ORDER

The agency shall, within 30 days of the date this decision becomes

final, reinstate the settled complaint for further processing from the

point processing ceased. The agency shall send a letter to appellant

informing her that the settled complaint is being reinstated. A copy

of the agency's letter reinstating the complaint must be sent to the

Compliance Officer referenced herein.

ATTORNEY'S FEES (H1092)

If appellant has been represented by an attorney (as defined by

29 C.F.R. �1614.501 (e)(1)(iii)), he/she is entitled to an award of

reasonable attorney's fees incurred in the processing of the complaint.

29 C.F.R. �1614.501 (e). The award of attorney's fees shall be paid

by the agency. The attorney shall submit a verified statement of fees

to the agency -- not to the Equal Employment Opportunity Commission,

Office of Federal Operations -- within thirty (30) calendar days of this

decision becoming final. The agency shall then process the claim for

attorney's fees in accordance with 29 C.F.R. �1614.501.

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. �l6l4.604(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:

February 11, 1999

DATE Ronnie Blumenthal, Director

Office of Federal Operations