01980205
11-13-1998
Thurman T. Tyndall, Appellant, v. Togo D. West, Jr. Secretary, Department of Veterans Affairs Agency.
Thurman T. Tyndall v. Department of Veterans Affairs
01980205
November 13, 1998
Thurman T. Tyndall, )
Appellant, )
)
v. ) Appeal No. 01980205
) Agency Nos. 96-0973,
) 96-1533, 96-2164
Togo D. West, Jr. )
Secretary, )
Department of Veterans Affairs )
Agency. )
)
DECISION
Appellant filed the instant appeal with the Commission from the agency's
determination that it had not breached the settlement agreement entered
into by the parties.
BACKGROUND
Appellant and the agency entered into a settlement agreement on February
4, 1997 in which appellant agreed to withdraw several EEO complaints
and the agency agreed in pertinent part to:
"Reassign [appellant] to a Medical Clerk, GS-679-4 position (Position
Description #7491-8), in the Clinic area....[Appellant] will be trained
in this position for not more than 90 days. Recruitment is beginning
for a trainer. When the trainer is hired, [appellant] and the Medical
Clerks in this area will be further trained. After satisfactorily
completing the training, [appellant], along with the other successful
Medical Clerks will be promoted to a GS-5 position."
By letter dated June 24, 1997, appellant informed the agency that it had
breached the settlement agreement by (1) hiring a trainer from within the
agency, and (2) not promoting appellant to a GS-5 position within 90 days,
or by May 4, 1997. Appellant requested that the agency hire a trainer
for appellant and that it pay appellant a GS-5 salary retroactive to May
4, 1997, the date by which appellant claims that he was to be promoted. It
appears from a review of the record that appellant received a promotion
to a GS-5 position on June 8, 1997.
In an undated letter to appellant, the agency responded to appellant's
allegation that it had breached the February 4, 1997 settlement agreement.
Therein, the agency indicated that the agreement required only that it
[agency] hire a trainer. The agency points out that the agreement
contained no requirement that the trainer be hired from outside the
agency. The agency further determined that the agreement did not require
the agency to promote appellant within 90 days. It required simply, that
appellant would not be trained for more than 90 days in the position of
Medical Clerk, GS-679-4 and thereafter, appellant would be further trained
by a trainer before being promoted to a GS-5 position.
ANALYSIS AND FINDINGS
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.
See 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.
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
(August 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 (April
29, 1994)(citing 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, 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).
In the instant case, appellant alleges that the agency failed to
comply with the settlement agreement, when a trainer was hired from
within the agency and when appellant was not promoted within 90 days,
or by May 4, 1997. The agency's response to appellant's allegations
correctly points out that the agreement did not require that a trainer
by hired from outside the agency. Nor did the agreement require that
appellant be promoted within 90 days. The agreement clearly states that
appellant would be trained for not more than 90 days in the position of
Medical Clerk GS-679-4 and that following training in this position,
and once a trainer had been hired, appellant would be further trained
(emphasis added). The agreement stipulates that following appellant's
successful training, he would be promoted to a GS-5 position. The record
indicates that appellant was, in fact, promoted to a GS-5 position on June
8, 1997. In applying the principles of law previously stated herein,
the Commission determines that the agency did not violate the terms of
the settlement agreement with respect to training and promotion.
CONCLUSION
Accordingly, the agency's determination that it did not breach the
settlement agreement is hereby AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (MO795)
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 (S0993)
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. 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 (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:
November 13, 1998
DATE Ronnie Blumenthal, Director
Office of Federal Operations