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