01995969
03-21-2000
David Santiago, Complainant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.
David Santiago, )
Complainant, )
)
v. ) Appeal No. 01995969
) Agency No. 98-1223
Togo D. West, Jr., )
Secretary, )
Department of Veterans Affairs, )
Agency. )
____________________________________)
DECISION
On July 21, 1999, complainant filed an appeal with this Commission from
a final decision (FAD) by the agency dated June 17, 1999, finding that
it was in compliance with the terms of the June 22, 1998 settlement
agreement into which the parties entered.<1> See 64 Fed. Reg. 37,644,
37,659, 37,660 (1999)(to be codified and hereinafter referred to as EEOC
Regulation 29 C.F.R. � 1614.402); 29 C.F.R. � 1614.504(b). The Commission
accepts the appeal for review pursuant to 64 Fed. Reg. 37,644, 37,659
(1999)(to be codified at 29 C.F.R. � 1614.405).
By letter dated April 23, 1998, the agency proposed to remove complainant
from his Housekeeping Aid position. Complainant filed a formal complaint,
but agreed to withdraw his complaint in the June 22, 1998 settlement
agreement. The settlement agreement provided, in pertinent part, that
complainant would participate in a last chance/removal abeyance agreement.
The last chance agreement provided, in pertinent part, that the agency
would:
(1)(a) Hold the effective date of the decision to remove [complainant]
in abeyance for a period not to exceed ninety (90) days . . ., so long
as he continues to adhere to the terms and conditions of the agreement;
(1)(b) Detail [complainant], effective June 22, 1998, for a period not
to exceed ninety (90) days to the position of Food Service Worker;
. . .
(1)(f) Rescind the removal after ninety (90) days of satisfactory
compliance with this agreement.
In the last chance agreement, complainant agreed to:
Meet the following performance standards at a satisfactory level or
better at the end of the ninety (90) day period:
Be fully trained in and able to perform the tasks for which the position
is responsible;
Be knowledgeable of the regular and modified diets . . .;
. . .
Understand and apply the principles of sanitary food handling practices
necessary in a health care food production and service environment;
. . .
Maintain satisfactory attendance, conduct, performance, and working
habits that are acceptable to management.
By letter dated September 29, 1999, complainant alleged that the agency
was in breach of the settlement agreement, and requested that the agency
reinstate his prior complaint. Complainant argued that the agency acted in
bad faith when it offered him a position that �set him up for failure.�
Complainant argues that agency failed to reasonably accommodate his
disabilities at the Food Service Worker position, harassed him at the new
work site, and then removed him when he was unable to perform the job.
Meanwhile, complainant filed a formal complaint, Agency No. 98-4356,
alleging discrimination when, inter alia, the agency failed to advise
complainant of his responsibilities in the Food Service Worker position;
failed to reasonably accommodate him in the Food Service Worker position;
harassed him with progress reports noting deficiencies in his performance
of the position; and removed him from employment on September 4, 1998.
By final decision dated March 15, 1999, the agency dismissed the claims,
but later rescinded the March 15, 1999 decision, and accepted the
complaint for investigation on June 23, 1999.
The record includes a letter from complainant to a psychiatrist, dated
June 21, 1998. In this letter, complainant admits difficulty deciding
whether to sign the settlement agreement, because he has heard the Food
Service Worker position is very stressful and will be difficult for him
to perform given his mental condition. The record includes a document
entitled �Progress Report,� which cites complainant for failing to wash
his hands before handling food on repeated occasions, failing to perform
simple tasks such as cleaning the floor and counting beverages, and making
no effort to learn about patient diets. The record also contains a copy
of the notice of removal, dated August 28, 1998, removing complainant from
employment because he failed to comply with the last chance agreement.
ANALYSIS AND FINDINGS
Volume 64 Fed. Reg. 37,644, 37,656 (1999)(to be codified and hereinafter
referred to as 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 instant case, the Commission finds that the agency did not act in
bad faith in its settlement offer. The record reveals that complainant
was aware that he was being offered a difficult, high-stress position.
Complainant had the option to proceed with his complaint, but instead
opted for placement in the Food Service Worker position pursuant to the
settlement agreement. Further, the agency did not breach the agreement
by terminating his employment when he failed to perform the tasks required
in the last chance agreement.
EEOC Regulations require that subsequent acts of discrimination be
processed as separate complaints, not as a breach of a settlement
agreement. See 29 C.F.R. � 1614.504(c). In the present case, complainant
alleges harm from subsequent acts of discrimination, including the
agency's failure to accommodate complainant at his new position,
harassment in the new position, and termination. Complainant raised
these issues in a separate formal complaint, and the agency properly
processed them as an individual complaint of discrimination, not as a
claim of breach.
CONCLUSION
Accordingly, the Commission finds that the agency did not breach the
terms of the June 22, 1998 settlement agreement, and the agency properly
dealt with the subsequent acts of alleged discrimination as a separate
complaint.
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).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S1199)
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:
March 21, 2000
____________________________
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the 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 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.