John Pettyjohn, Complainant,v.R. James Nicholson, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionMar 22, 2005
01a51257 (E.E.O.C. Mar. 22, 2005)

01a51257

03-22-2005

John Pettyjohn, Complainant, v. R. James Nicholson, Secretary, Department of Veterans Affairs, Agency.


John Pettyjohn v. Department of Veterans Affairs

01A51257

03-22-05

.

John Pettyjohn,

Complainant,

v.

R. James Nicholson,

Secretary,

Department of Veterans Affairs,

Agency.

Appeal No. 01A51257

Agency No. 200L-0635-2003-102095

Hearing No. 310-2004-00298X

DECISION

INTRODUCTION

Complainant initiated an appeal to the Equal Employment Opportunity

Commission from the final decision of the agency concerning his allegation

that the agency violated Title VII of the Civil Rights Act of 1964, as

amended, 42 U.S.C. � 2000e et seq., the Age Discrimination in Employment

Act of 1967, as amended, 29 U.S.C. � 621 et seq., and Section 501 of

the Rehabilitation Act of 1973, as amended, 29 U.S.C. � 791 et seq.

The Commission accepts the complainant's appeal from the agency's final

order in the above-entitled matter pursuant to 29 C.F.R. � 1614.405.

ISSUE PRESENTED

The issue presented herein is whether complainant has shown by a

preponderance of the evidence that the agency violated the terms of its

May 26, 1995 settlement agreement with complainant.

BACKGROUND

The record indicates that, on May 26, 1995, complainant entered into

a settlement agreement with the agency that provided that, upon his

request, the agency would provide him with assistance in applying

for announced positions. The agreement indicated that assistance

would include reviewing his application for completeness and neatness.

On or about August 12, 2002, complainant submitted an application for

the position of Vocational Rehabilitation Specialist, GS-11. There is

no dispute that complainant's did not request assistance pursuant to

the settlement agreement prior to initiating the application process.

According to complainant, he verbally told the receptionist at the

personnel office about the settlement agreement when he handed in his

application. Complainant's application was deemed incomplete, which

resulted in him being rated �not qualified.� Complainant was not referred

to the selecting official and therefore was not selected. The personnel

officer who qualified the candidates did not know complainant or know

about the settlement agreement.

Complainant filed a complaint against the agency alleging discrimination

based on race (Native American), sex (male), disability (PTSD), age

(53), and reprisal for prior EEO activity when, in March 2003, the

agency failed to hire him and did not provide help and assistance

in the application process. Following an investigation, complainant

was informed of his right to an administrative hearing before an EEOC

Administrative Judge (AJ). Complainant elected to have the hearing;

however, the AJ found that there were no genuine issues of material

fact and that summary judgment in the agency's favor was appropriate.

The AJ dismissed complainant's complaint for lack of jurisdiction.

According to the AJ, administrative judges do not have jurisdiction

over claims alleging breach of settlement agreements. To the extent

that complainant properly raised a new complaint of discrimination, the

AJ found that he failed to establish a prima facie case. According to

the AJ, complainant did not show that he applied for and was qualified

for the position because his application was incomplete. The agency

issued a final action, which adopted the AJ's decision.

ANALYSIS AND FINDINGS

After reviewing the record in this case, we find that a fair reading

of complainant's claim is that his May 26, 1995 settlement agreement

with the agency was violated because he was not provided with assistance

in applying for the position of Vocational Rehabilitation Specialist.

The agency erred in processing this matter as a new allegation of

discrimination, not as a claim that the settlement agreement was violated.

Consequently, notwithstanding the AJ's decision and the agency's final

decision, we will address complainant's claim that the settlement

agreement was violated.

In the May 26, 1995 settlement agreement, the parties, among other

things, agreed that complainant would withdraw his complaint, and that

the agency would:

2(a). Assist the aggrieved person [complainant] upon his request, in the

proper procedures for applying for an announced Veterans Readjustment

Authority position as listed on the Recruitment Bulletin, for which he

is interested.

2(a)(1). Assist defined as: (1) Explain what forms and documents are

needed to apply, which are, among other things, resume or alternative

application.

2(a)(2). Show him where to send or deliver his application and regional

forms.

2(a)(3) Review for completeness and neatness.

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). We find that the plain and unambiguous meaning

of the settlement agreement was that, in exchange for complainant's

promise to withdraw his complaint, the agency would, upon complainant's

request, provide him with assistance when he applied for a position.

Here, we find no evidence that complainant requested assistance from the

agency prior to submitting his application in August 2002; therefore,

we find that no violation of the settlement agreement occurred.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0701)

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

___03-22-05_______________

Date