01971792
03-22-1999
Linda L. Klamm, Appellant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.
Linda L. Klamm v. Department of Veterans Affairs
01971792
March 22, 1999
Linda L. Klamm, )
Appellant, )
)
v. ) Appeal No. 01971792
) Agency No. 96-2122
Togo D. West, Jr., )
Secretary, )
Department of Veterans )
Affairs, )
Agency. )
______________________________)
DECISION
On December 18, 1996, appellant filed a timely appeal with this Commission
from a final decision (FAD) by the agency dated November 19, 1996, finding
that it was in compliance with the terms of the April 3, 1996 settlement
agreement into which the parties entered. See 29 C.F.R. ��1614.402,
.504(b); EEOC Order No. 960, as amended.
The settlement agreement provided, in pertinent part, that in exchange
for the withdrawal of appellant's EEO complaint, the agency agreed to:
(a) Remove a co-worker (CW1) from overall administrative and interpretive
review and control of all [of appellant's] rating decisions.
(b) Direct all requests for performance-related issues to [appellant's]
direct supervisor only.
(c) As opportunities for increased responsibility and authority present
themselves, upon [appellant's] request, [she] will be considered.
By letter to the agency dated May 14, 1996, appellant alleged that the
agency was in breach of the settlement agreement, and requested that
the agency resume processing of her prior complaint from the point
processing ceased. Specifically, appellant alleged that on May 10,
1996, she was advised that her evaluation was being held up for Central
Office (CO) review due to two Statistical Quality Control (SQC) errors
that CW1 had found against her, and that the CO decision on this issue
would make a difference as to whether she received an "outstanding" or
"fully successful" evaluation. Appellant asserted that the two cases
which were under CO review had been discussed prior to entering the
settlement agreement and that it was agreed that the SQC errors found by
CW1 on those cases would not be considered for appellant's evaluation.
As an alternative settlement of her EEO complaint, appellant sought
transfer from her division.
In its November 19, 1996 FAD, the agency concluded that CW1 was removed
from any control or administrative or interpretive review of appellant's
rating decisions and that since the agreement all of appellant's cases
have been reviewed by another Hearing Officer.<1>
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, we find that there is insufficient information
in the record to determine whether the agency was in compliance
with the settlement agreement. Appellant contended that CW1 signed
off on several of appellant's rating decisions after the date of the
settlement agreement, and submitted documents in the record purporting
to support this contention. Although the documents appear to contain
CW1's signature, appellant provided no evidence showing that the case was
assigned to her. Similarly, the agency provided no evidence in the record
supporting its assertion that it was in compliance with the agreement.
Absent information supporting or rebutting appellant's allegations of
noncompliance, we are unable to determine whether the agency was in
breach of the settlement agreement.
Accordingly, the agency's decision is hereby VACATED and this matter
REMANDED to the agency for further processing in accordance with this
decision and the Order below.
ORDER
The agency is ORDERED to take the following actions:
Within fifteen (15) calendar days of the date this decision becomes final,
the agency shall undertake a supplemental investigation to determine if
it was in compliance with the settlement agreement. The agency shall
notify appellant that she is to provide the agency with any evidence
she has supporting her allegation of breach within fifteen (15) days of
receipt of the agency's notice.
Within forty-five (45) calendar days of the date this decision becomes
final, the agency shall issue a notice of processing and/or a new FAD
concerning appellant's allegations of breach. If the FAD determines that
the agency was in compliance, the agency shall specifically address all
evidence submitted by appellant pursuant to paragraph (a) above.
A copy of the agency's notice of processing and/or new FAD must be sent
to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0595)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action.
The report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the appellant. If the agency does not comply with the Commission's
order, the appellant may petition the Commission for enforcement of
the order. 29 C.F.R. �1614.503(a). The appellant also has the right
to file a civil action to enforce compliance with the Commission's
order prior to or following an administrative petition for enforcement.
See 29 C.F.R. ��1614.408, 1614.409, and 1614.503(g). Alternatively,
the appellant has the right to file a civil action on the underlying
complaint in accordance with the paragraph below entitled "Right to File
A Civil Action." 29 C.F.R. ��1614.408 and 1614.409. A civil action for
enforcement or a civil action on the underlying complaint is subject to
the deadline stated in 42 U.S.C. �2000e-16(c) (Supp. V 1993). If the
appellant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. �1614.410.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (R0993)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court. It is the position of the Commission that 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. You should be aware, however, that courts in some
jurisdictions have interpreted the Civil Rights Act of 1991 in a manner
suggesting that a civil action must be filed WITHIN THIRTY (30) CALENDAR
DAYS from the date that you receive this decision. To ensure that your
civil action is considered timely, you are advised to file it WITHIN
THIRTY (30) CALENDAR DAYS from the date that you receive this decision
or to consult an attorney concerning the applicable time period in the
jurisdiction in which your action would be filed. In the alternative,
you may file a civil action AFTER ONE HUNDRED AND EIGHTY (180) CALENDAR
DAYS of the date you filed your complaint with the agency, or filed your
appeal with the Commission. 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.
Filing a civil action will terminate the administrative processing of
your complaint.
RIGHT TO REQUEST COUNSEL (Z1092)
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:
March 22, 1999
____________________________
DATE Ronnie Blumenthal, Director
1The agency further determined that allegations of discrimination
relating to the issue of the transfer from appellant's division and her
non-selection as Rating Board Section Chief, must be brought to the
attention of an EEO Counselor as a new EEO complaint. However, the
record contains no references to these issues by appellant in her letter
alleging breach, and appellant did not address these issues on appeal.
The Commission notes, however, that the agreement is silent with regard
to possible transfers for appellant, and only guarantees consideration
for opportunities for increased responsibility and authority, not actual
placement. See Johnson v. United States Postal Service, EEOC Request No.
05900663 (August 27, 1990).