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