01992991
06-21-2000
Mary L. McClain, Complainant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.
Mary L. McClain, )
Complainant, )
)
v. ) Appeal No. 01992991
) Agency Nos. 92-1536
Togo D. West, Jr., ) 93-2810
Secretary, )
Department of Veterans Affairs, )
Agency. )
____________________________________)
DECISION
Complainant entered into a settlement agreement with the agency on
May 11, 1994. Therein, the agency agreed to �reassign complainant to
the position of Program Clerk - Typing, GS-5 or Claims Clerk, GS-5,
in Medical Administration Service without delay.� On June 6, 1994,
complainant alleged breach of the agreement.
The agency denied complainant's claim of breach, and complainant appealed
to this Commission. See McClain v. Department of Veterans Affairs,
EEOC Appeal No. 01992991 (January 23, 1998). The Commission was unable
to determine whether any breach occurred, and remanded the claim for
a supplemental investigation. See id. Specifically, the Commission
ordered the agency to:
(1) . . . [O]btain documentary evidence, including, but not limited to,
Official notifications to [complainant] of any and all assignments,
reassignments, promotions, and details between May 11, 1994 and June 6,
1994 . . . .
(2) . . . [P]rovide a documented explanation as to the unavailability
of applicable evidence [and] . . . obtain statements under oath or
affirmation from persons, including complainant if necessary, with
personal knowledge of the specifics of complainant's position changes
occurring between May 11, 1994, and June 6, 1994, with job titles,
classifications, grade levels, and effective beginning and ending dates
where applicable; [and]
(3) . . . [P]rovide appropriate evidence . . . pertaining to the location
of [complainant's] positions relevant to the May 11, 1994 agreement.
The agency shall explain, for example, whether the file room, Ward
Administration, and Atrium were located in and were part of the Medical
Administration Service (MAS).
The Commission also required the agency to issue a new final decision
concerning breach.
On January 19, 1999, the agency issued a new final decision, again
finding no breach of the agreement. According to the agency, the claim
of breach concerned whether the agency placed complainant in a different
type of position than that contemplated in the settlement agreement.
The agency found that the agreement was silent as to where in the
hospital complainant would be placed. Further, the agency found that
placing complainant in a Program Clerk-Typing position in MAS, Ward 6A,
did not breach the agreement. The agency also found that complainant
received the retroactive promotion to GS-5.
Complainant timely appealed the new final decision on February 17,
1999, and the Commission accepts the appeal for review. See 64
Fed. Reg. 37,644, 37,659, 37,660 (1999)(to be codified and hereinafter
referred to as EEOC Regulation 29 C.F.R. � 1614.402); 29 C.F.R. �
1614.504(b); and 64 Fed. Reg. 37,644, 37,659 (1999)(to be codified at
29 C.F.R. � 1614.405). On appeal, complainant argues that she was told
she would be reassigned to the atrium or the file room. She contends
that she was placed in the ward because the clerks were being phased-out
(to allow for complainant's removal). She also notes that her medical
condition prevents her from working around patients with communicable
diseases,; due to this condition, complainant explains that she refused
to work on the ward, and exhausted her leave to avoid working there.
According to complainant, she arrived at work the afternoon that she
signed the settlement agreement, and was told that no position was
available for her. She returned each day until a position was found,
in Ward 6A, a week later. Complainant also argues that a position was
available in Medical Media, but that she was told no vacancies were
available.
The supplemental investigation includes a Standard Form - 50 (SF-50),
recording complainant's transfer to the �Administrative SVCS Medical
Administration SVCS,� effective May 15, 1994.
The record reveals that complainant was transferred again in June 1996.
The record also contains several affidavits. An MAS supervisor stated
that she was on leave at the time of complainant's transfer, but was
told that complainant was assigned to Ward 6. Another MAS supervisor
stated that complainant was under her direct supervision on Ward 6A
North for about one week, before she was transferred elsewhere.
In complainant's affidavit, she explains that she exhausted all of
her leave and took some leave-without-pay to avoid working on Ward 6A.
She contends that the agency made a verbal agreement with her, and with
an EEOC Administrative Judge, to reassign her to the atrium or file room.
She notes that she was transferred from MAS to Medical Media in July
1994, and then moved to Education Services, where she currently works,
when the Medical Media division was closed in 1996.
Volume 64 Fed. Reg. 37,644, 37,656 (1999)(to be codified and hereinafter
referred to as 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 agency has not breached the agreement.
The agreement provided that complainant would be reassigned to MAS.
The SF-50 form indicates that complainant received such a transfer.
The agreement did not require that complainant be assigned to any
particular location within the facility, so long as she was reassigned
to MAS. The affidavits of several MAS supervisors reveals that working
on Ward 6A was not outside of MAS, but was a possible duty location for
MAS staff. Complainant's argument that the agency verbally agreed to
relocate her to the atrium or file room is insufficient. If complainant
wished only to work in these specific locations, she and/or her attorney
should have negotiated for such provisions in the settlement agreement
itself. This verbal agreement, not expressed in the written settlement
agreement, is unenforceable. See Dunton v. United States Postal Service,
EEOC Request No. 05970415 (April 8, 1999) (refusing to consider a �verbal
representation� in interpretation of a settlement agreement).
CONCLUSION
Accordingly, the agency's decision is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)
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:
June 21, 2000 ____________________________
Date Carlton M. Hadden, Acting Director
Office of Federal Operations