Julius E. Clark, Complainant,v.Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionJun 14, 2001
01A01925 (E.E.O.C. Jun. 14, 2001)

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