01a02201
06-16-2000
Rodney Lester, Complainant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.
Rodney Lester v. Department of Veterans Affairs
01A02201
June 16, 2000
Rodney Lester, )
Complainant, )
)
)
v. ) Appeal No. 01A02201
) Agency Nos. 97-1866 & 98-0301
)
Togo D. West, Jr., )
Secretary, )
Department of Veterans Affairs, )
Agency. )
________________________________)
DECISION
Complainant timely appealed the agency's decision not to reinstate
his complaints of unlawful employment discrimination that the parties
had settled.<1> See 64 Fed. Reg. 37,644, 37,659-37,660 (1999) (to
be codified and hereinafter referred to as 29 C.F.R. � 1614.402(a),
� 1614.405, and � 1614.504).
The record indicates that on December 17, 1997, the parties settled
complainant's two formal complaints and one informal complaint.
The settlement agreement provided, in pertinent part, that:
e. A neutral party would be present during complainant's performance
related discussions with the Chief, Information Resources Management
(IRM) Service;
f. Management would ensure a work environment free of harassment,
intimidation and reprisal; and
g. The Chief would be removed from direct front-line supervisory
involvement, thereby, allowing complainant's immediate supervisor to
handle the day to day operations of the Hardware Section. The supervisor,
Hardware Section, would conduct weekly staff meetings to allow for
participation and decision making of subordinates.
By letter dated August 7, 1998, complainant alleged that the
agency breached paragraphs e, f, and g of the settlement agreement.
Specifically, complainant indicated that he was harassed by the Chief
after the settlement agreement and on August 6, 1998, he received a
letter of admonishment and two letters of counseling. In his letter
dated September 13, 1999, complainant indicated that on August 31, 1999,
he was stalked and harassed by the Chief.
In its final decision, the agency stated that it did not breach the
settlement agreement. The agency stated that complainant's claim
concerned subsequent acts of discrimination. In a memorandum dated
September 21, 1998, the Director, VAH Hines stated that the Chief
met with complainant on two occasions to discuss performance issues,
and the union was present. The Director also stated that the Acting
Hardware Supervisor occasionally met with complainant to discuss fact
findings and/or behavior issues, and complainant received two letters
of counseling from the Acting Hardware Supervisor with no one present.
In June 1999, complainant, the Acting Hardware Supervisor, and the
Chief met to discuss issues concerning complainant's unprofessional
conduct regarding equipment repair in the admitting area, and two
union representatives were present. The Director also indicated that
complainant was placed under the supervision of the Hardware Section
Supervisor following the settlement agreement; in February 1998, he was
placed under the supervisor of the Acting Hardware Supervisor; and on
or after June 25, 1998, he was supervised by a new supervisor.
On appeal, complainant contends that his settlement breach claim mainly
concerns paragraph g of the settlement agreement. Complainant does not
contest paragraph e of the settlement agreement.
EEOC Regulation 29 C.F.R. � 1614.504 provides that if the complainant
believes that the agency failed to comply with the terms of a settlement
agreement, the complainant should notify the Director of Equal Employment
Opportunity, in writing, of the alleged noncompliance with the settlement
agreement, within thirty (30) days of when the complainant knew or should
have known of the alleged noncompliance. The complainant may request that
the terms of the settlement agreement be specifically implemented or,
alternatively, that the complaint be reinstated for further processing
from the point processing ceased.
The agency shall resolve the matter and respond to the complainant,
in writing. If the agency has not responded to the complainant, in
writing, or if the complainant is not satisfied with the agency's attempt
to resolve the matter, the complainant may appeal to the Commission for
a determination as to whether the agency has complied with the terms of
the settlement agreement or final decision.
The Commission has held that settlement agreements are contracts between
the complainant 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 (August 23, 1990). In addition, the
Commission generally follows the rule that if a 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 v. Building Engineering Services,
730 F.2d 377 (5th Cir. 1984). The Commission has followed this rule
when interpreting settlement agreements. The Commission's policy in
this regard is based on the premise that the face of the agreement best
reflects the understanding of the parties.
Upon review, the Commission finds that the agency did not breach the
terms of the settlement agreement. Specifically, the agency, undisputed
by complainant, indicated that during complainant's performance related
discussions with the Chief, his union representative(s), a neutral party,
was present. With regard to paragraph g of the settlement agreement,
the record indicates that complainant was supervised by his immediate
supervisors, and not the Chief, pursuant to the settlement agreement.
The agency, undisputed by complainant, indicated that complainant's
immediate supervisor was directly involved with the daily operations
of the Hardware Section and held informal weekly meetings as required.
Furthermore, complainant does not provide any specific incident where the
Chief had direct front-line supervisory involvement nor does he provide
any specific incident where his supervisor did not conduct weekly staff
meetings to allow for participating and decision making of subordinates.
With regard to complainant's claim of further harassment by the Chief
in violation of paragraph f, the Commission finds that these matters
should be processed as a separate complaint since they involve subsequent
acts of alleged discrimination. 29 C.F.R.� 1614.504(c). Therefore, if
complainant wishes to further pursue these claims, he should rather than
as claims of noncompliance with a settlement agreement. See also Anthony
v. Department of Education, EEOC Request No. 05910142 (April 18, 1991).
Accordingly, the agency's decision not to reinstate the settled matters
is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)
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:
June 16, 2000
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
1On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.