01A01925
06-14-2001
Julius E. Clark, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.
Julius E. Clark v. VA
01A01925
June 14, 2001
.
Julius E. Clark,
Complainant,
v.
Anthony J. Principi,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A01925
Agency No. 97-0227
DECISION
Complainant filed a timely appeal with this Commission from the agency's
final decision dated December 1, 1999, finding that it complied with
the terms of the March 23, 1998 settlement agreement into which the
parties entered. See 29 C.F.R. � 1614.402; 29 C.F.R. � 1614.504(b).
The settlement agreement provided, in pertinent part, that the agency
shall provide:
A letter from 137/EMS stating if there are any job assignments in EMS
[Environmental Management Services] that I can do given my physical
limitations, and if there are none, then outline the different options
that are available to me at this time.
That if there is no job that I can do and my only option [is] to apply
for disability retirement, that I may continue in my light duty assignment
until the disability is approved.
That recognition be given to second shift EMS employees for their
continued contribution to the functioning of the service and the medical
center.
That inservice be given to EMS employees and made available to other
employees [as] on-the-job safety and prevention and what the employees
role and responsibilities are in completing/submitting the proper
paperwork should an injury occur (including the use of the network
OWCP [Office of Workers' Compensation Program] Nurse and 05 staff to
outline and explain expected waiting time between filing and decision,
physician information to be supplied to OWCP, interim work assignments
while awaiting a decision, use of leave time, and all options available
to employees).
By letter to the agency dated May 21, 1999, complainant alleged that
the agency breached the settlement agreement, and requested that the
agency reinstate his complaint. Specifically, complainant alleged that
the agency failed to follow provisions (b), (e), (f), or (g).
In its December 1, 1999 decision, the agency concluded that no breach
occurred. The agency explained that complainant received notice on April
9, 1999, that his disability retirement was approved effective August
14, 1999; therefore, the agency found that provisions (b), (e), and (g)
were rendered moot. Concerning provision (f), the agency found that a
$50.00 team award was given to all EMS second shift employees on February
2, 1999. The agency noted that since complainant was not a member of
second shift EMS at the time, he was not eligible to receive an award.
On appeal, complainant argues that he never received a letter stating
whether any jobs were available within his physical restrictions, or
whether he had any other options available. Complainant further contends
that he was separated from the agency on April 9, 1999, but his disability
retirement was not approved until June 9, 1999. Complainant asserts
that only one second shift employee received recognition as required in
provision (f). Complainant also argues that the agency had plenty of time
to conduct inservice classes on the OWCP process before his retirement,
but failed to do so. Complainant notes that he was required to attend
inservice classes on several other subjects.
The record includes a letter to complainant dated October 30, 1998, noting
that complainant could no longer perform his assigned light-duty position.
Agency officials requested more medical information to evaluate whether
any positions were available within complainant's physical limitations.
Thereafter, complainant underwent a fitness-for-duty medical exam to
determine his capabilities.
The record also contains a statement from a staffing specialist, dated
May 28, 1999, noting that a placement survey was conducted to find
a position within complainant's restrictions. The specialist found
two positions for which complainant was qualified, but none within
complainant's medical restrictions.
Complainant was given a notice of termination, dated April 8, 1999. The
notice informed complainant that �this facility was unable to restructure
your position or place you through a placement survey into another vacant
position for which you were qualified.� The agency explained that �your
services can no longer be gainfully utilized,� and notified complainant
that his termination for disability was effective April 14, 1999. Then,
by letter dated June 9, 1999, the Office of Personnel Management [OPM]
approved complainant's application for disability retirement. OPM noted
that �according to the information we have received, you have not been
separated from Government Service.� By letter dated September 17,
1999, the agency noted that following complainant's separation, OPM
made his disability retirement �retroactive to his last day of work,
April 14, 1999.�
The record also includes a copy of EMS meeting minutes from January
28, 1999. �A Team Award of $50.00 cash . . . [for] second shift staff
members� was announced at the meeting. By memorandum dated July 21, 1999,
the agency noted that a briefing was held for all EMS staff concerning
safety and OWCP concerns.
ANALYSIS AND FINDINGS
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 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 the instant case, the Commission finds no breach of provisions (b) or
(e). The agency attempted to place complainant in a light duty position
he could perform, and when it was unable to do so, informed him that
his only option was separation. Once his disability retirement was
approved, it was made retroactive to his last date in pay. Therefore,
he was working until the effective date of his disability retirement.
The record also clearly reflects compliance with provision (f) of the
agreement. The agency issued an award to all second shift EMS employees
prior to complainant's claim of breach.
However, the agency breached provision (g) of the settlement. The record
indicates that the agency failed to conduct the training contemplated in
provision (g) for over a year. Further, once complainant alleged breach,
the agency waited an additional two months to conduct the training.
Provision (g) provided no deadline for safety/OWCP training. When a
settlement agreement does not provide a specific time period within
which an agency will execute the terms, the Commission has held that the
agency is required to act within a reasonable amount of time. See Gomez
v. Department of the Treasury, EEOC Request No. 05930921 (February
10, 1994); Parker v. Department of Defense, EEOC Request No. 05910576
(August 29, 1991). The one year and four month delay in this case is
not reasonable. The agency has not even attempted to justify its delay.
Nonetheless, since complainant is no longer employed by the agency and
the agency eventually complied with the provision, we find that the
breach has been cured and there is no further relief available for this
claim of breach.
CONCLUSION
The agency's decision is AFFIRMED for the reasons set forth herein.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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
June 14, 2001
__________________
Date