01a05803
02-22-2001
Esther J. Buck, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.
Esther J. Buck v. Department of Veterans Affairs
01A05803
02-22-01
.
Esther J. Buck,
Complainant,
v.
Anthony J. Principi,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A05803
DECISION
Complainant filed a timely appeal with this Commission for a determination
regarding whether the agency violated the terms of a settlement agreement
which resolved an EEO complaint filed against the agency.<1> We find
that the appeal is timely (see 29 C.F.R. � 1614.401(d) and 29 C.F.R. �
1614. 504(a) and (b)), and is accepted in accordance with 29 C.F.R. �
1614.405.
ISSUE PRESENTED
The issue on appeal is whether the agency violated the terms of its
settlement agreement with complainant.
BACKGROUND
Complainant and the agency entered into a settlement agreement on June
4, 1999. Among other things, the parties agreed that management would
reassign complainant to:
Surgical Service as a GS-6 Program Support Assistant, effective June 20,
1999.
There is no dispute that complainant was in fact reassigned to the above
position in June 1999. The claim of breach arose after complainant was
subsequently detailed to an Agent Cashier position. Complainant was
informed of the detail in March 2000, but, based on the advice of her
former EEO counselor, she did not allege that the June 4, 1999 settlement
agreement had been breached until May 12, 2000, after she reported for
the detail. On July 7, 2000, the agency issued a decision that dismissed
complainant's allegation of breach on the grounds that it was not raised
in a timely manner. This appeal followed.
ANALYSIS AND FINDINGS
Settlement agreements are contracts between the complainant and the agency
to which ordinary rules of contract construction apply. 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 any resort to extrinsic
evidence of any nature. See Montgomery Elevator v. Building Engineering
Services, 730 F.2d 377 (5th Cir. 1984).
The record indicates that complainant was reassigned to Surgical Service
as agreed. There was no provision in the settlement agreement that
prohibited the agency from subsequently detailing complainant to other
duties. Complainant has not alleged, nor does the record indicate,
that she is no longer a member of the Surgical Service Division.
She was merely detailed, temporarily, to other duties. Therefore,
we do not find that the agency violated the terms of the settlement
agreement. If complainant believes that her detail was discriminatory,
her remedy is to seek EEO counseling on the matter. EEOC Regulation
29 C.F.R. � 1614.504(c) provides that allegations that subsequent acts
of discrimination violate a settlement agreement shall be processed
as separate complaints under � 1614.106 or � 1614.204, as appropriate,
rather than under this section.<2>
CONCLUSION
Accordingly, the agency's determination that it did not breach the
terms of its settlement agreement with complainant was proper and it is
AFFIRMED.<3>
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
______02-22-01________________________
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.
2Complainant is advised that if she wishes to pursue, through the EEO
process, this claim, she shall initiate contact with an EEO counselor
within 15 days after she receives this decision. The Commission
advises the agency that if complainant seeks EEO counseling regarding
her detail within the above 15 day period, the date complainant raised
her breach claim, May 12, 2000, shall be deemed to be the date of initial
EEO contact, unless she previously contacted a counselor regarding this
matter, in which case the earlier date should serve as the EEO counselor
contact date. Cf. Alexander J. Qatsha v. Department of the Navy, EEOC
Request No. 05970201 (January 16, 1998).
3Because of our decision above, we will not address the issue of whether
complainant raised her allegation of breach in a timely manner.