01990391
12-06-1999
Ella M. Butler, Complainant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.
Ella M. Butler, )
Complainant, )
)
v. )
) Appeal No. 01990391
Togo D. West, Jr., ) Agency No. 96-0390
Secretary, )
Department of Veterans Affairs, )
Agency. )
____________________________________)
DECISION
On October 13, 1998, complainant filed a timely appeal with this
Commission from a final agency decision (FAD), dated September 23, 1998,
finding that it was in compliance with the terms of the February 12,
1996 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 Regulations 29 C.F.R. ��1614.402, .504(b)); EEOC
Order No. 960, as amended.
The settlement agreement provided, in pertinent part, that:
VA will engage Appellant as a contract investigator for EEO cases under
its Retired Annuitant Investigator Program, under the same conditions
as other participants in the program. (A description of the program
and conditions is attached hereto.) The program's current rate of
compensation is $140.00/day, plus travel expenses as allowable under the
Federal Travel Regulations. Appellant could work in all four regions.
Before being assigned any cases, Appellant will have to complete the
program's advanced training required of all program participants at her
own expense; the next training currently is planned for February/March,
1996. VA will advise Appellant of the specific dates for the training
as soon as practicable so that she can make the necessary arrangements.
After Appellant completes Part I of the training, VA will assign her one
case as Part II of her training. Provided she completes that training
assignment in a satisfactory manner, in terms of quality and timeliness,
VA will assign her cases in the same manner as assignments to the other
EEO Investigators. To continue as an EEO Investigator, she must meet
VA's requirements governing quality, timeliness, and completeness for
investigation reports and a neutral, professional demeanor in conducting
investigations, which are applicable to al EEO Investigators.
By letter to the agency dated July 24, 1998, complainant alleged that the
agency was in breach of the settlement agreement, and requested that the
agency specifically implement the its terms. Specifically, complainant
alleged that she received a letter indicating that her services as
an Investigator were no longer needed, while other Investigators were
retained.
On September 23, 1998, the agency issued a FAD finding no breach of the
settlement agreement. The agency determined that the settlement agreement
only provided that complainant would be given the opportunity to train for
and possibly participate in its Retired Annuitant Investigator Program.
It did not promise complainant �participation in the program for
perpetuity or for any guaranteed minimum term.� The agency determined
that when fewer Retired Annuitant Investigators were needed, those with
an evaluation score of less than 36.00 were eliminated from the program.
The agency further determined that complainant was treated as other
investigators in the program, and that therefore the settlement agreement
was not breached.
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, we find that the agency has complied with the terms
of the settlement agreement. The settlement states that complainant
would be given the opportunity to train for the program, and that if
she successfully completed training, she would be able to participate in
the program. The record reflects that, for over two years, complainant
served as a Retired Annuitant Investigator. The settlement agreement did
not provide that complainant would be given special consideration in the
case of a reduction of investigators. The record reveals that complainant
was treated as other participants in the program, and evaluated according
to her log score. Accordingly, the agency's decision finding no breach
of the settlement agreement was proper and 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).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. In the alternative, you may file a
civil action AFTER ONE HUNDRED AND EIGHTY (180) CALENDAR DAYS of the date
you filed your complaint with the agency, or filed your appeal with the
Commission. 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. Filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1092)
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. 6, 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.