0120123371
03-08-2013
Jessica Rizzo, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Jessica Rizzo,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120123371
Agency No. 200H05392010105013
DECISION
Complainant filed a timely appeal with this Commission from a final decision (FAD) by the Agency dated November 8, 2012, finding that it was in compliance with the terms of the settlement agreement into which the parties entered. See 29 C.F.R. � 1614.402; 29 C.F.R. � 1614.504(b); and 29 C.F.R. � 1614.405.
BACKGROUND
Complainant is an employee of the Agency's Cincinnati VA Medical Center.
Believing that the Agency subjected her to unlawful discrimination, Complainant filed an EEO complaint with the Agency. The matter was before an EEOC Administrative Judge (AJ) when, on November 18, 2011, Complainant and the Agency entered into a settlement agreement to resolve the matter.
The settlement agreement provided, in pertinent part, that:
1. . . .
f. The Agency shall have (180) days to fix an outstanding Leave Without Pay (LWOP) issues as a result of a time keeping error which created a Debt of $711.28 and/or the issues related to the LWOP contained in the Complainant's record (e.g. debt collection and delayed with-in grade increase from February 13, 2011-May 27, 2011). . . .
By motion dated August 15, 2012, to the AJ before whom the settlement agreement was made, Complainant alleged that the Agency was in breach of the settlement agreement, and requested that the Agency specifically implement its terms. The AJ referred Complainant to the Commission. On August 22, 2012 Complainant filed her appeal Specifically, Complainant alleged that the Agency failed to pay her the money owed and asked that the Agency be ordered to comply with the terms of provision (1)(f) of the agreement.
On November 8, 2012, the Agency responded to Complainant's appeal, stating that it was unaware that the agreement had not been complied with until it received Complainant's appeal. In its appeal statement, the Agency represented that it had since contacted the Defense Finance and Accounting Service (DFAS), the entity responsible for its finance and accounting services. The Agency asserted that DFAS claimed it could not find the remedy ticket submitted by the Agency. The Agency represented that it has since paid Complainant the monies due from the medical center budget. The Agency provided documentation showing that payment was made to Complainant on October 24, 2012, for the amount required by the settlement agreement. We will treat the Agency's response to the appeal as its final determination on Complainant's breach claim.
ANALYSIS
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. Dep't of Def., 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. Dep't 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 O v. U.S. Postal Serv., 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 had not complied with its obligations under provision (1)(f) of the settlement agreement at the time Complainant filed her appeal. However, since that time, the Agency has provided evidence that once it was put on notice that Complainant had not been paid, it took immediate action to rectify the situation. Therefore, we now find that the Agency is in substantial compliance with this provision of the agreement, albeit about five months late.
Accordingly, we do not find that the Agency remains in breach of the agreement at this time.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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 77960, Washington, DC 20013. 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 (S0610)
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 (Z0610)
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 from the Court that the Court appoint an attorney to represent you and that the Court also 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 with the Court 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
March 8, 2013
__________________
Date
2
0120123371
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120123371