01995573
06-16-2000
Isiah Thomas, Complainant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.
Isiah Thomas, )
Complainant, )
)
v. )
) Appeal No. 01995573
Togo D. West, Jr., ) Agency No. 92-1446
Secretary, )
Department of Veterans Affairs, )
Agency. )
______________________________)
DECISION
Complainant filed a timely appeal with this Commission for a determination
regarding whether the agency violated the terms of three previous
settlement agreements.<1> We find that the appeal is timely (see 29
C.F.R. � 1614.401(d) and 64 Fed. Reg. 37,644, 37,660 (1999) (to be
codified and hereinafter referred to as 29 C.F.R. � 1614.504(a) and
(b))), and is accepted in accordance with 64 Fed. Reg. 37,644, 37,659
(1999) (to be codified at 29 C.F.R. � 1614.405).
The issue on appeal is whether complainant has established that the
agency violated the terms of its settlement agreements between him and
the agency.
The agency and complainant entered into two settlement agreements (SA-1
and SA-2) and signed
a third document that complainant maintained was also settlement agreement
(Document-1). SA-1, dated May 22, 1992, provided, in pertinent part,
that the agency would:
(b) examine the medical records provided to determine whether or not the
complainant has a [disability] as described under current statutes; and
(c) use the [Form] CA-17, dated 05/06/91, as guidance until a current
one is provided.
Subsequently, complainant notified the agency that he considered it
to have violated the terms of SA-1 because his medical records were
never reviewed to determine his disability status. On June 1, 1999,
A-1, an agency official in Washington, informed the VA Medical Center
in Little Rock, Arkansas that it had violated SA-1. Specifically, A-1
indicated that �there was no evidence to support that [complainant's]
records were reviewed and a determination rendered.�<2> Consequently,
A-1 directed that: (1) complainant be asked for his medical records
for an examination and evaluation; and (2) a qualified individual,
utilizing the current CA-17, examine the records to determine whether or
not complainant met the definition of being a person with a disability.
Once the determination was made, A-1 ordered that complainant be provided
with documentation indicating the determination. On June 1, 1999, the
agency issued a final decision informing complainant that it would comply
with the terms of SA-1. On appeal, complainant appears to acknowledge
that his medical records have now been evaluated by a physician.
SA-2, dated February 7, 1997, provided, in pertinent part, that the
agency would:
2(b). [p]rovide the complainant with a fair and equitable work environment
free from harassment or any discrimination based on race, color, religion,
age, sex, national origin, handicap, or reprisal.
Without providing specifics, complainant maintained that the agency
violated the above provision. The agency, in its June 8, 1999 final
decision, informed complainant that his claim, that subsequent acts of
discrimination have violated SA-2, must be brought to the attention of
an EEO counselor.
With respect to Document-1, dated January 16, 1998, the agency noted
that the document was not a settlement agreement, but instead a Report
of Contact. Consequently, in its June 8, 1999 final decision, the agency
found that there was no breach.
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).
SA-1
After a careful review of the record, we find that the agency violated
the terms of the settlement agreement. Although the settlement agreement
did not provide a time frame in which complainant's records were to
be reviewed and a determination rendered, the Commission has held that
performance of a contract is required within a reasonable amount of time.
See Gomez v. Department of the Treasury, EEOC Request No. 05930921
(February 10, 1994). Consequently, we find that the agency's failure
to take the actions required by the settlement agreement until 7 years
after its execution constituted a breach.
A review of SA-1 reveals that the parties agreed that if the agency
failed to comply with any of the agreement's terms, for any reason not
attributable to the complainant, the agency would reopen the complaint
for further processing at the point where processing ceased. Therefore,
in compliance with this provision, we shall reverse the agency's decision
and remand this matter in accordance with the Order below.
SA-2
We do not find that a violation of SA-2 occurred here.
64 Fed. Reg. 37,644, 37,660 (1999)(to be codified as 29 C.F.R. �
1614.504(c)) provides that �[a]llegations 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.� The agency correctly informed complainant that
he had to contact an EEO counselor regarding any matters that he believed
to be discriminatory. Therefore, we AFFIRM the agency's decision.
Document-1
We do not find that a violation of a settlement agreement occurred here.
Like the agency, we do not find that the Report of Contact signed by
the parties was a settlement agreement. According to Document-1, the
parties by signing �enter[ed] into a binding effort to reconcile past
differences outlined and forthcoming: (1) both parties agree and recognize
that this attempt to reconcile their past and present positions does not
void the previously awarded EEO complaint to [complainant] . . . .� By
its very terms, Document-1 was not an attempt by the parties to resolve
an EEO complaint in exchange for some offered consideration. Therefore,
we AFFIRM the agency's decision.
Accordingly, the agency's decision regarding SA-1 is REVERSED.
The agency's decisions concerning SA-2 and Document-1 are AFFIRMED.
ORDER
The agency shall, within 30 days of the date this decision becomes
final, reinstate Complaint No. 92-1446 for further processing from the
point processing ceased. The agency shall send a letter to complainant
informing him that Complaint No. 92-1446 is being reinstated. A copy
of the agency's letter reinstating Complaint No. 92-1446 must be sent
to the Compliance Officer referenced herein.
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 (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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION
(R0400)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court WITHIN NINETY (90) CALENDAR DAYS from the date
that you receive this decision. 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 (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:
_06-16-00_________ __________________________________
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.
2The record does not indicate why the agency did not comply with the
terms of SA-1 earlier.