0120091547
05-14-2009
Joe DeLeon, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Joe DeLeon,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120091547
Agency Nos. 200P-0691-2006100525 & 200P-0691-2006101353
DECISION
Complainant filed a timely appeal with this Commission from a final
decision (FAD) by the agency dated October 24, 2008, finding that it
was in compliance with the terms of the February 15, 2007 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.
The settlement agreement provided, in pertinent part, that:
The agency hereby agrees to expand the "as needed" portion of
Complainant's approved job duties to give him additional responsibility,
as follows:
* With regard to added duties of limited driving, visual inspection of
vehicles and validating and reconciling credit card charges involving
government vehicle fleet cars, the Agency will make an addendum to the
job offer that has been effective since 10/25/2004 and will submit this
addendum to the Department of Labor for its approval by no later than
3/1/2007.
By letter to the agency dated September 29, 2008, complainant alleged that
the agency breached the above term (hereinafter referred to as term 2)
of the settlement agreement.
Previously, in DeLeon v. Department of Veterans Affairs, EEOC Appeal
No. 0120072961 (August 28, 2007), the Commission ruled, after complainant
made an earlier claim of breach in April 2007, that the agency did not
breach term 2. Specifically, the Commission ruled that the agency sent
the agreed upon letter to the Department of Labor on March 2, 2007,
which although one day late, substantially complied with term 2.
In his notice of breach dated September 29, 2008, complainant alleged
that the agency breached term 2 when it did not permit him to drive, and
he was advised he would be required to undergo another physical before
being cleared to do so. Complainant contended that this was improper
because he was allegedly cleared to drive by the agency's Employee Health
Physician's Office on February 22, 2006, and that medical examinations
for drivers of his type were required only once every four years, so he
was not due for another medical examination. Complainant added that a
September 4, 2008, letter by the Department of Labor, Office of Workers'
Compensation Programs (OWCP) confirmed that medical documentation on
file revealed no driving restrictions, and on August 4, 2006, his medical
provider wrote he had none.
In its October 24, 2008 FAD, the agency concluded that the Commission
already ruled that the agency complied with term 2, and he is not
permitted to relitigate the same matter. In the alternative, the FAD
found that complainant did not prove breach because there are no terms in
the settlement agreement regarding medical examinations or motor vehicle
driving restrictions. The FAD advised complainant that if he believed
he was discriminated against, he should discuss it with an EEO counselor,
and noted a counselor's report indicated he already did so.1
On appeal, complainant argues that the settlement agreement included
the added duties of limited driving, subject to the approval of the
Department of Labor, which occurred via its letter dated September
4, 2008. He also reiterated his argument in the notice of breach that
he was medically cleared to drive, and was not due for another driver's
physical. He added that the agency still does not permit him to perform
visual inspections of vehicles.
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 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 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 DeLeon v. Department of Veterans Affairs, EEOC Appeal No. 0120072961
(August 28, 2007), the Commission ruled that the agency complied with
term 2 by sending the required addendum to complainant's job offer to
the Department of Labor, albeit one day late. Complainant now contends
that the agency breached term 2 by not permitting him to drive without
another physical because on September 4, 2008, OWCP approved the addendum
via letter confirming it had no medical documentation on file restricting
his driving, and he already had a driver physical clearing him to drive
well within the last four years, as required.
We find that complainant's second claim of breach is sufficiently
different from the first that it does not constitute a relitigation
of the same matter. However, we agree with the FAD that complainant
failed to identify language or a term in the settlement agreement
that was breached, and we find none. Term 2 promised that the added
duty of limited driving would be added to complainant's job offer (and
hence effectively his position description), subject to the approval of
the Department of Labor. This is different from a promise to permit
complainant to drive. As conceded by complainant, there are certain
requirements that must be met to drive. While complainant argues
that he has met these requirements, the settlement agreement does not
constitute a promise to permit driving.
Accordingly, the FAD finding no breach is affirmed.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 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 (S0408)
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 (Z1008)
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
May 14, 2009
__________________
Date
1 The counselor's report indicates that complainant alleged discrimination
when in September 2008, the agency refused to return him to his assigned
duties as a driver, and that it indicated a physical examination
was required before he would be permitted to do so. Following this
counseling, complainant filed a formal complaint. This decision in no
way rules on complainant's allegations of discrimination.
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0120091547
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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