0120064654
03-18-2008
Maurice Troop, Complainant, v. R. James Nicholson, Secretary, Department of Veterans Affairs, Agency.
Maurice Troop,
Complainant,
v.
R. James Nicholson,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01200646541
Agency No. 200L06292006102
DECISION
Complainant filed a timely appeal with this Commission from a final
decision (FAD) by the agency dated June 30, 2006, finding that it was
in compliance with the terms of the March 3, 2006 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.
The settlement agreement provided, in pertinent part, that:
(2) The Agency will amend complainant's SF-50 to indicate that he
voluntarily resigned on September 28, 2005.
(3) The Agency will purge any mention of complainant's prior removal
from his [Official Personnel Folder (OFP)] within a reasonable time.
Appellant shall have thirty (30) days from the notice of the said purge
to inspect his OPF form compliance.
By letter to the agency dated May 16, 2006, complainant alleged that
the agency was in breach of the settlement agreement, and requested that
the agency specifically implement its terms. Specifically, complainant
alleged that his former supervisor (S1) disclosed to a potential employer
that he was removed from his former position with the agency at her
recommendation. Further, complainant argued that the agency failed to
notify him that his OPF was purged.
In its June 30, 2006 FAD, the agency concluded that complainant failed
to show that the agency breached the terms of the settlement agreement.
Specifically, the agency found that complainant's SF-50 indicated
that complainant voluntarily resigned his position as Hospital
Housekeeping Officer. Further, S1 stated that she did not make any
derogatory statements concerning complainant's employment or state that
he was terminated. The Chief of Human Resources Management stated that
a notice was mailed to complainant indicating that the OPF was purged
and informing him of the opportunity to inspect his OPF.
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 O 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 complainant failed to prove that the
agency breached the terms of the settlement agreement. With regard
to complainant's contention that S1 provided negative comments to his
potential employer, we find that the record contains an e-mail stating
that S1 spoke "freely about the problems she had with [complainant] while
he was employed at the New Orleans, LA medical center. [Complainant]
was terminated during the one year probationary period at [S1's]
recommendation." Assuming that S1 spoke negatively about complainant's
employment, we find that nothing in the plain meaning of the terms
of the settlement agreement precludes S1 or any agency official from
communicating to others about the circumstances surrounding complainant's
termination. Although complainant argues that the settlement agreement
provides that he would be given a neutral reference, the plain meaning of
the terms of the settlement agreement do not require the agency to do so.
Further, the record reflects that complainant's SF-50 forms were amended
per the settlement agreement.
With regard to complainant's claim that he had not yet received notice of
that his OPF was purged, the Chief of Human Resources Management stated
that complainant's OPF was purged on March 9, 2006 and complainant was
notified by letter on May 31, 2006 of his right to review the OPF within
30 days of the notice. Although the letter was not mailed until after
the agency received complainant's allegations of breach, we find that
nothing in the record suggests that complainant was not provided the 30
days to review his OPF file once he received the notice. As such, we find
that complainant failed to show that the agency breached the settlement
agreement as complainant alleged. As such, we find that complainant
failed to establish that the agency breached the terms of the settlement
agreement as he alleged. The agency's decision is hereby affirmed.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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
__03-18-2008________________
Date
1 Due to a new data system, this case has been redesignated with the
above referenced appeal number.
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0120064654
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120064654