01A31341_r
07-09-2003
Angela A. Fisher, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.
Angela A. Fisher v. Department of Veterans Affairs
01A31341
July 9, 2003
.
Angela A. Fisher,
Complainant,
v.
Anthony J. Principi,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A31341
Agency No. 200O-521
DECISION
Complainant filed a timely appeal with this Commission from a final
decision by the agency dated November 19, 2002, finding that it was in
compliance with the terms of the April 22, 1994 settlement agreement
into which the parties entered.
The settlement agreement provided, in pertinent part, that:
The Department of Veterans Affairs agrees that:
Prior discussions and consultation will occur if changes are proposed
which affect the following:
chain of command;
organizational chart;
staffing levels;
pay grades;
position descriptions; and
authorities and responsibilities not specifically mentioned, but
commonly expected of laboratory personnel.
By letter to the agency dated August 27, 2002, complainant alleged that
the agency was in breach of the settlement agreement, and requested
that the agency specifically implement its terms. Specifically,
complainant alleged that she received a memorandum dated August 12, 2002,
signed by the Chief, Pathology and Lab Medicine Service, implementing
changes effective that date, primarily changing all the major duties and
responsibilities of her position description. These changes, complainant
states, were not discussed with her previously. Complainant further
acknowledges that the memorandum was rescinded and that its content was
discussed at a meeting held August 15, 2002.
In its November 19, 2002 decision, the agency concluded that no breach
of the settlement agreement occurred. Specifically, the agency found
that the agency technically breached the settlement agreement when,
without prior discussion, the August 12, 2002 memorandum was issued
to complainant, which implemented changes to complainant's position
description, authorities and responsibilities. However, the agency
concluded that the breach was cured when the memorandum was rescinded and
the proposed changes were discussed with complainant at a meeting held
with complainant and agency management on August 15, 2002. The agency
points out that the settlement agreement does not state that the areas
listed in provision 2(d) could never be affected, but that the agreement
specifies that prior discussion and consultation with complainant will
occur if changes are proposed, as happened in this instance on August
15, 2002. Accordingly, the agency found no breach of the settlement
agreement occurred.
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 concur with the agency that any breach of
the settlement agreement has been remedied. As acknowledged by
complainant, the August 12, 2002 memorandum proposing changes to her
position description, authority and responsibilities was rescinded,
and shortly thereafter, agency officials consulted complainant and
discussed the contents with her as required by the settlement agreement.
We find the agency therefore took the necessary steps to comply with the
terms of the settlement agreement, upon notice that breach had occurred.
If complainant is attempting to raise separate breach claims regarding
incidents occurring after the issuance of the agency's November 19,
2002 decision, then complainant should contact the EEO Director in
writing pursuant to 29 C.F.R. � 1614.504(a).
The agency's decision is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 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 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 (S0900)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
July 9, 2003
__________________
Date