0120091896
06-30-2009
Albert McNeill, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Albert McNeill,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120091896
Agency No. 2003-0554-2008102587
DECISION
Complainant filed a timely appeal with this Commission from a final agency
decision dated February 20, 2009, finding that it was in compliance
with the terms of the October 7, 2008 settlement agreement into which
the parties entered. See 29 C.F.R. �� 1614.402, .405, .504(b).
The settlement agreement provided, in pertinent part, that:
1. In return for, and in consideration of the actions specified in
paragraph 2, [complainant] hereby withdraws in its entirety his complaint
of discrimination Complaint Number 2003-0554-2008102587 . . .
2. The Agency shall:
a. Beginning FY09 (1st Quarter), the first-line Supervisor, currently
[], will hold at a minimum, quarterly mini training sessions to include
but not limited to the following topics as deemed necessary (appropriate
Union officials are invited to attend these meetings):
1. EEO Program Policies (No Fear/Whistleblower Act/Prevention of Sexual
Harassment and Reasonable Accommodations)
2. Family and Medical Leave Act (FMLA) Guidelines
3. Respect and Civility in the workplace
b. The first-line Supervisor, currently [], will send a memo to all
employees on her staff regarding the zero tolerance for inappropriate
behavior by close of business Monday, September 8th but no later than
Tuesday, September 9th, 2008.
By letter to the agency dated December 11, 2008, complainant alleged
that the agency was in breach of the settlement agreement, and requested
that the agency reinstate the underlying complaint. Specifically,
complainant alleged that violations continued following the October
settlement agreement. Complainant alleged that a coworker (C1)
continuously used profane language in his presence and that of patients,
and made derogatory statements to him.
In its February 20, 2009 decision, the agency concluded that Agency
No. 2003-0554-2008102587 does not exist because complainant failed to
file a formal complaint within 15 days after receiving his Notice of
Right to File. The agency stated that the October 7 settlement agreement
was not based on a live controversy and the instant complaint was cited
only for reference. The agency noted that the subsequent actions by C1
are more appropriately addressed as a separate complaint. The instant
appeal from complainant followed, without comment.
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 O 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 complainant failed to meet his burden of
proving breach. See Vega v. U.S. Postal Service, EEOC Appeal No. 01986613
(June 30, 2000). Based on evidence of record, we agree with the agency
and find that the actions grieved here, harassment by C1, are subsequent
incidents that may be better addressed as a separate complaint, rather
than as a breach allegation. 29 C.F.R. � 1614.504(c). Therefore,
complainant may raise his claim of further discrimination as a new,
separate EEO claim, if he has not already done so. Complainant is advised
to contact an EEO Counselor if he wishes to pursue these matters through
the EEO process. Hence, we AFFIRM the agency's finding of no breach.
However, we note to the agency that the withdrawal of the underlying
complaint (2003-0554-2008102587) is the consideration that complainant
provided in the October 7 settlement agreement and is not simply cited
for reference. Hence, its argument of a baseless settlement agreement
is without merit.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 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 77960,
Washington, DC 20013. 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 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).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0408)
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 (Z1008)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
June 30, 2009
__________________
Date
2
0120091896
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
4
0120091896