0120101730
08-03-2010
Jose M. Bejar, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Jose M. Bejar,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120101730
Agency No. 2003-0677-2009102367
DECISION
Complainant filed a timely appeal with this Commission from a final decision (FAD) by the Agency dated February 24, 2010, finding that it was in compliance with the terms of the November 2, 2009 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. For the following reasons, the Commission AFFIRMS the Agency's final decision.
BACKGROUND
The settlement agreement provided, in pertinent part, that the Agency would:
(1) Remove lumbar punctures from Complainant's clinical privileges, and
(2) Remove the requirement that Complainant perform lumbar punctures under the supervision of another physician.
By correspondence to the Agency in January 2010, Complainant alleged that the Agency was in breach of the settlement agreement. Specifically, Complainant alleged that the Agency failed to renew Complainant's clinical privileges to perform lumbar punctures without supervision and remove the modification of Complainant's clinical privileges (regarding lumbar punctures under supervision).
In its February 24, 2010 FAD, the Agency concluded that it had complied with the specific provisions of the settlement agreement. The Agency, based upon its examination of the agreement, determined that it was under no obligation to renew Complainant's clinical privileges to perform lumbar punctures without supervision.
CONTENTIONS ON APPEAL
The Agency insists that the terms of the settlement are "plain and unambiguous," and that it has complied with its obligations under the agreement. Complainant did not submit any brief in support of his argument.
FINDINGS AND 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, the Agency agreed to remove the condition that Complainant perform lumbar punctures under the supervision of another physician and to completely remove lumbar punctures from Complainant's clinical privileges. Apparently, the Agency was willing to erase the stricture on Complainant's record (which Complainant believed could affect his medical license) so long as Complainant no longer performed the specified procedure. Complainant does not argue that the provisions listed in the settlement were not complied with; rather, Complainant argues the Agency has failed to reinstate his full clinical privileges (including the ability to perform lumbar punctures unsupervised), but any provision to this effect is nowhere to be found in the agreement. The Commission agrees with the Agency's final decision that, had Complainant desired this outcome, he should have insisted that language to this effect be included in the final settlement agreement. Cf. McKoy v. USPS, EEOC Appeal No. 01A52248 (July 15, 2005).
CONCLUSION
We AFFIRM the agency's Letter of Determination finding that no breach of the Settlement Agreement of November 2, 2009 occurred.
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
August 3, 2010
__________________
Date
2
0120101730
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120101730