01a05537
11-01-2000
Carolina G. Leal, Complainant, v. Hershel W. Gober, Acting Secretary, Department of Veterans Affairs, Agency.
Carolina G. Leal v. Department of Veterans Affairs
01A05537
November 1, 2000
.
Carolina G. Leal,
Complainant,
v.
Hershel W. Gober,
Acting Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A05537
DECISION
Complainant filed a timely appeal with this Commission from a final
decision by the agency dated July 26, 2000, finding that it was in
compliance with the terms of the March 6, 1998 settlement agreement into
which the parties entered.<1> See 29 C.F.R. � 1614.402; 29 C.F.R. �
1614.504(b); and 29 C.F.R. � 1614.405.
The settlement agreement provided, in pertinent part, that:
(2) The [agency] agrees to do the following:
The complainant shall receive priority consideration for any registered
nursing (RN) position vacancy that complainant qualifies for at VACHCS,
West Side Division, for a period of two years from the date of this
agreement. Priority consideration shall require VACHCS, West Side
Division to list the complainant's name only for any vacant position she
applies for and is found qualified for, in the first list considered
by the selection panel or the selecting official. If complainant is
not selected, the selecting panel or official must provide a written
statement with bona fide job considerations why a different candidate
was selected over the complainant.
By letter to the agency dated July 24, 1999, complainant alleged that the
agency was in breach of the settlement agreement, and requested that the
agency reinstate her EEO complaint. Specifically, complainant alleged
that the agency failed to give her priority consideration for several
RN position vacancies for which she was qualified in the VACHCS West
Side Division between April 1998 and the present. Complainant stated
that not only did the agency fail to consider her for the RN positions
but it even failed to notify her of the vacancies.
In its July 26, 2000 decision, the agency concluded that it did not breach
the May 6, 1998 settlement agreement. Specifically, the agency stated
that complainant did not apply for any positions during the relevant
time period, as required by the terms of the settlement agreement. Thus,
the agency stated that it was not in breach the settlement agreement.
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 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 present case, we find that the agency was not in breach of
the May 6, 1998 settlement agreement into which the parties entered.
Complainant claims that the agency breached the agreement by failing to
give her priority consideration for several RN vacancies at the VACHS
West Side Division. The agency stated that complainant was to receive
priority consideration only for the positions for which she applied and
was found qualified and argued that since she did not apply for any RN
position it did not breach the agreement. The agreement defines priority
consideration as requiring the agency to �list the complainant's name
only for any vacant positions she applies for and is found qualified for�
during a period of two years from the date of the agreement. Complainant
does not claim, and the record does not show, that complainant applied
for any RN position vacancies during the relevant period. In addition,
we reject complainant's argument that the agency was under an obligation
to notify her of any vacancies, since the plain language of the agreement
does not require the agency to notify complainant of any RN vacancies.
Accordingly, the agency's decision that it did not breach the settlement
agreement was proper and is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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
November 1, 2000
__________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
__________________
Date
______________________________
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 29 C.F.R. Part 1614 in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.