01983642
06-07-2000
Foster Palmer, Complainant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.
Foster Palmer v. Department of Veterans Affairs
01983642
June 7, 2000
Foster Palmer, )
Complainant, )
)
v. ) Appeal No. 01983642
) Agency No. 97-1217
Togo D. West, Jr., )
Secretary, )
Department of Veterans )
Affairs, )
Agency. )
____________________________________)
DECISION
INTRODUCTION
Complainant filed a timely appeal with this Commission from two final
agency decisions, one concerning his settlement breach claim and the
other concerning his complaint of unlawful employment discrimination
in violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. � 2000e et seq., and the Age Discrimination in Employment Act
of 1967, as amended, 29 U.S.C. � 621 et seq.<1> The appeal is accepted
pursuant to 64 Fed. Reg. 37,644 37,659 (1999) (to be codified at 29
C.F.R. � 1614.405). <2> For the following reasons, the agency's final
decision is AFFIRMED in part and REVERSED in part.
ISSUES PRESENTED
The issues on appeal are whether the agency properly (1) determined
that it did not breach the settlement agreement signed by both parties
on March 14, 1996 and (2) dismissed complainant's complaint for failure
to state a claim.
BACKGROUND
The evidence of record reveals that, on March 14, 1996, the agency and
complainant entered into a settlement agreement whereby the complainant
agreed to:
retire or separate from VA service no later than June 1, 1996, unless
he secured a temporary detail to a federal or quasi-federal employment
position outside the Department prior to that date. In the event that
complainant secured said detail under the aforementioned conditions,
he agreed to separate or retire from VA service upon the termination of
such detail, but in any event no later than November 1, 1996.
For its part, the agency agreed, in relevant part, to present no objection
to complainant's acceptance of any federal retirement "buy-out" option
for which the complainant may be otherwise eligible. The parties refer
to this provision as Paragraph 2(f).
Because the complainant had secured a temporary detail to another federal
agency prior to June 1, 1996, he was not required to retire by that date.
After serving a five month detail to two other agencies, complainant
returned to the VA on November 4, 1996 to retire in accordance with
the settlement agreement. According to him, he was instructed to
go home. He contended that later in the week, he called to inquire
as to his status and was told, by the Executive Director's labor
relations attorney, to return to work on Tuesday, November 12, 1996.
Upon reporting to work as requested, he was instructed to report to
the Service and Distribution Center where he assumed the position of
Supervisor, Contracts Administrator. The position that he held prior
to his five-month detail, Chief of the Business Services Office, had
been abolished sometime during his absence.
On December 5, 1996, the agency issued a memorandum regarding voluntary
incentive buy-out payments. Per the memorandum, several categories
of employees were eligible for buy-out. One category of employees
identified as being eligible were "employees occupying positions that
have been identified for abolishment." The complainant argued that since
his position, Chief of the Business Service Office, was abolished, he was
eligible for the buy-out payments and, therefore, the agency's refusal
to provide him those payments constituted a breach of the March 14, 1996
settlement agreement. In its decision regarding the settlement breach
claim, the agency ruled that complainant was not eligible for the buy-out
payments because his position, Supervisor, Contracts Administrator,
was not abolished. In response, complainant contends that in his new
position, although he was supplied with a list of job duties, he did
not receive any assignments, lost his parking space, has no key card
to the office building, was given an office with no furniture, and,
among other things, is not listed in the agency's computer directory.
On March 12, 1997, the parties amended the original settlement agreement.
Although the amended agreement left most of the original provisions
untouched, there were two key changes: (1) complainant agreed to retire
from federal service effective March 17, 1997 (as opposed to November 1,
1996) and (2) both parties acknowledged their inability to resolve their
disagreement as to the relevancy and implementation of Paragraph 2(f).
Almost three months after the settlement agreement was amended,
complainant, on June 6, 1997, filed a formal complaint alleging new
allegations of discrimination in the implementation of the settlement
agreement. In that complaint, complainant claims that the agency
entered into the settlement agreement with no intentions of honoring it.
He believes that the agency's actions were based on age and in retaliation
for prior EEO complaints filed by him against the agency. In its final
decision concerning this complaint, the agency ruled that the issues
contained therein concerned the implementation and/or interpretation of
the March 14 settlement agreement, and thus, failed to state a claim.
ANALYSIS AND FINDINGS
Breach of Settlement Agreement
Settlement agreements constitute a contract between the employee and
the agency, and therefore, when interpreting them, ordinary rules of
contract construction apply. Herrington v. Department of Defense,
EEOC Request No. 05960032 (December 9, 1996). It is the intent of the
parties as expressed in the contract, not some unexpressed intention,
that controls the contract interpretation. Eggleston v. Department
of Veteran's Affairs, EEOC Request No. 05900795 (August 23, 1990)
(emphasis added). In ascertaining the intent of the parties regarding
the terms of a settlement agreement, the Commission has generally relied
on the plain meaning rule. O v. United States Postal Service, EEOC
Request No. 05910787 (December 2, 1991). Essentially, 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 kind. Montgomery Elevator
Co. v. Building Eng'g Servs. Co., 730 F.2d 377 (5th Cir. 1984).
In this case, the provision of the settlement agreement at issue here
states that the agency will not present any objection to complainant's
acceptance of any federal retirement "buy-out" for which he may be
otherwise eligible. To determine whether the complainant was eligible for
the "buy-out" option issued by the agency, we examined the memorandum,
dated December 5, 1996, which informed employees of the categories of
workers eligible for the federal retirement "buy-out." The category of
relevance in this case is the one which indicated that "all employees
[in the Office of Acquisition and Material Management] occupying positions
that have been identified for abolishment" were eligible for the "buy-out"
opportunity (emphasis added). The agency's use of the word "occupying"
is a clear indication that the group of employees made eligible by the
category at issue here was limited in scope to those employees working in
their respective positions whose jobs were identified for abolishment at
the time the memorandum was released. Because complainant's job, Chief
of the Business Service Office was abolished long before the release
of the December 6 memorandum and his new job, Supervisor, Contracts
Administrator, was never identified for abolishment, the Commission finds
that he was not eligible for the federal retirement "buy-out" option.<3>
Failure to State a Claim
An agency shall dismiss a complaint, or portion thereof, that fails
to state a claim. 29 C.F.R. � 1614.107(a). An agency shall accept
a complaint from any aggrieved employee who believes that he or
she has been discriminated against by that agency because of race,
color, religion, sex, national origin, age, or disabling condition.
29 C.F.R. �� 1614.103; 1614.106(a). Commission precedent regarding
this issue has long defined an "aggrieved employee" as one who suffers
a present harm or loss concerning a term, condition, or privilege or
employment for which there is a remedy. Diaz v. Department of the Air
Force, EEOC Request No. 05931049 (April 21, 1994).
A review of the complaint at issue here indicates that complainant
believes that the agency's refusal to comply with the terms and
conditions of the settlement agreement was based on age and reprisal.
The complaint also indicates, however, that complainant believes that
the agency failed to give him assignments, took away his parking space,
did not assign him a key card, gave him an office with no furniture,
and, among other things, did not list his name in the agency's computer
directory because of his age and prior EEO complaints.
Regarding the first sub-issue of complainant's complaint (i.e., failure
to comply with the terms of the settlement agreement), our regulations
provide that the proper avenue for addressing such violations are governed
by 29 C.F.R. � 1614.504, not the complaints process. In this case,
the complainant took both routes. Because we have determined that the
agency was in compliance with the terms of the settlement agreement and
because the complaints process is not the proper avenue for addressing
such matters, that sub-issue will not be revisited here.
Regarding the second sub-issue (i.e., the agency's failure to give him
assignments, etc.), however, we find that complainant did state a claim.
By essentially stating that he was denied responsibilities, authority,
and accountability, complainant, in effect, stated that he has suffered
a loss or harm concerning a term, privilege, or condition of employment.
CONCLUSION
Based upon a review of the record, and the foregoing reasons, it is the
Commission's decision to AFFIRM the agency's first final decision, the one
regarding a breach of the March 14, 1996 settlement agreement, and that
portion of the second final decision which found that complainant could
not raise settlement breach allegations in a new complaint; but REVERSE
and REMAND that portion of the second final decision which dismissed,
for failure to state a claim, complainant's contention that he was denied
responsibilities, authority, and accountability.
ORDER (E1199)
The agency is ORDERED to process the remanded claims in accordance with
64 Fed. Reg. 37,644, 37,656-7 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. � 1614.108). The agency shall acknowledge to
the complainant that it has received the remanded claims within thirty
(30) calendar days of the date this decision becomes final. The agency
shall issue to complainant a copy of the investigative file and also shall
notify complainant of the appropriate rights within one hundred fifty
(150) calendar days of the date this decision becomes final, unless the
matter is otherwise resolved prior to that time. If the complainant
requests a final decision without a hearing, the agency shall issue a
final decision within sixty (60) days of receipt of complainant's request.
A copy of the agency's letter of acknowledgment to complainant and an
copy of the notice that transmits the investigative file and notice of
rights must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K1199)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to the
complainant. If the agency does not comply with the Commission's order,
the complainant may petition the Commission for enforcement of the order.
29 C.F.R. � 1614.503(a). The complainant also has the right to file a
civil action to enforce compliance with the Commission's order prior
to or following an administrative petition for enforcement. See 64
Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. �� 1614.407, 1614.408), and 29 C.F.R. �
1614.503(g). Alternatively, the complainant has the right to file a
civil action on the underlying complaint in accordance with the paragraph
below entitled "Right to File A Civil Action." 29 C.F.R. �� 1614.407
and 1614.408. A civil action for enforcement or a civil action on the
underlying complaint is subject to the deadline stated in 42 U.S.C. �
2000e-16(c)(Supp. V 1993). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 64 Fed. Reg. 37,644, 37,659 (1999)
(to be codified and hereinafter referred to as 29 C.F.R. � 1614.409).
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 (T1199)
This decision affirms the agency's final decision/action in part, but it
also requires the agency to continue its administrative processing of a
portion of your complaint. 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 on both that portion
of your complaint which the Commission has affirmed AND that portion
of the complaint which has been remanded for continued administrative
processing. 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 your appeal with the Commission, until
such time as the agency issues its final decision on your complaint.
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:
June 7, 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
1According to the agency, the final decision regarding the settlement
breach allegation was issued on April 7, 1997. Complainant and his
attorney, however, contend that they were not notified of the decision
until March 18, 1998. Upon considering that the original settlement
breach decision was not dated and that the complainant, on March 10,
1998, sent a letter to the agency seeking the status of that decision,
the Commission concludes that the contention of the complainant and
his attorney is credible. As such, we find that the settlement breach
portion of the appeal is timely.
2On 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.
3In concluding that the agency did not breach the settlement agreement,
we note that there is no evidence that the agency official that determined
that complainant was ineligible for the federal retirement "buy-out"
option was completely removed from the events surrounding the underlying
complaint.