01994057
12-14-1999
David Wicks, Complainant, v. Norman E. D'Amours, Chairman, National Credit Union Administration, Agency.
David Wicks, )
Complainant, )
)
v. ) Appeal No. 01994057
) Agency No. 95-03
Norman E. D'Amours, )
Chairman, )
National Credit Union Administration, )
Agency. )
__________________________________ )
DECISION
Complainant filed the instant appeal from the agency's March 24, 1999
decision finding that the agency did not breach the settlement agreement
entered into by the parties on July 26, 1995. <1>
The settlement agreement provided that: complainant's performance
appraisal for the year ending December 31, 1994 would be changed to
�Fully Successful�; complainant would be granted a merit pay adjustment;
and the agency would restore 85 hours of annual leave and 56 hours of
sick leave to complainant. The agreement also provided:
[The agency] agrees that it will acquire necessary equipment or devices to
assist [complainant] in operating a computer with one hand. The equipment
or devices will be offered to [complainant] as an accommodation for his
physical disability.
[The agency] agrees that after procurement of the equipment or devices
referenced in Term C of this agreement, [complainant] will be given
additional time to perform his normal duties and responsibilities.
After [complainant] has used the equipment or devices for six months,
[the agency] will review the matter and, within thirty calendar days,
determine whether additional accommodations are necessary.
By letter dated August 27, 1998 complainant informed the agency that it
had breached the settlement agreement. The agency found in the March 24,
1999 determination that it had complied with the settlement agreement.
The regulation set forth at 64 Fed. Reg 37,644, 37,660 (1999) (to be
codified as and hereinafter cited as 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 "within 30 days of when the complainant knew
or should have known of the alleged noncompliance." 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. Id.
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
(Aug. 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 (Apr. 29, 1994) (citing
Hyon v. United States Postal Service, EEOC Request No. 05910787 (Dec. 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)).
Complainant did not indicate in the August 27, 1998 letter or on
appeal what provision of the settlement agreement had been breached by
the agency. A review of complainant's correspondence with the agency
and his affidavit provided during the agency's investigation of the
breach claim, indicate that complainant is claiming that he was not
provided a reasonable accommodation for his disability. Complainant
may also be claiming that the failure to provide such an accommodation
was retaliation for complainant's prior EEO activity. The Commission
finds that complainant is not claiming that the agency failed to comply
with the appraisal revision, pay adjustment, and restoration of leave
provisions of the settlement agreement.
The record shows that the agency took steps in good faith compliance
with the agreement to provide complainant with an accommodation for
his disability. The agency also indicates that, despite its effort,
the agency failed to find any acceptable equipment to adequately assist
complainant in meeting the requirements of his position. Complainant has
not claimed on appeal that the agency failed to take any of the actions
it claimed it took in the final decision.
The Commission finds that complainant's claim that the agency failed
to provide him with a reasonable accommodation in violation of the
settlement agreement (including a possible retaliation claim) amounts to
a claim that a subsequent act (or acts) of discrimination violated the
settlement agreement. The regulation set forth at 64 Fed. Reg at 37,660
(to be codified as and hereinafter cited as 29 C.F.R. � 1614.504(c))
provides that claims that subsequent acts of discrimination violate a
settlement agreement shall be processed as separate complaints under
the regulation set forth at 64 Fed. Reg. at 37656 (to be codified as
and hereinafter cited as � 1614.106) rather than as breach allegations.
Therefore, we find that the agency did not breach provisions C or D of the
settlement agreement. Such a claim of discrimination should be processed
as a separate complaint under � 1614.106 rather than as a breach claim.
If complainant wishes to pursue such a discrimination claim, then he
should contact an EEO Counselor. The Commission does not address in
this decision in any manner whether the agency discriminated against
complainant or provided complainant with any reasonable accommodation.
The agency's determination finding that the agency did not breach the
settlement agreement is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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). 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:
Dec. 14, 1999
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
Equal Employment Assistant
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.