01A33614_r
09-22-2003
Michael Bowen, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.
Michael Bowen v. Department of Veterans Affairs
01A33614
September 22, 2003
.
Michael Bowen,
Complainant,
v.
Anthony J. Principi,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A33614
Agency No.
DECISION
Complainant filed a timely appeal with this Commission from a final
decision by the agency dated April 24, 2003, finding that complainant
failed to diligently pursue breach of a settlement agreement that
complainant claimed had been executed in 1991 or 1992. See 29 C.F.R. �
1614.402; 29 C.F.R. � 1614.504(b); and 29 C.F.R. � 1614.405.
By letter to the agency dated January 14, 2003, complainant alleged
that the agency breached a settlement agreement reached with the agency
after his return from termination in 1991, and subsequent discrimination
complaint. Complainant stated that he �was never made whole, �and that
he suffered loss in the form of �leave, time and grade, and steps, etc.�
In its April 24, 2003 decision, the agency concluded that complainant
failed to show breach of a settlement agreement. The agency found that
complainant had not furnished a copy of �the settlement agreement reached
in 1991 or 1992,� and that pursuant to the General Records Schedule for
Civilian Records, complainant's discrimination complaint file had been
destroyed after four years and no record of a complaint or settlement
agreement existed with the agency. The agency further found that, as
complainant had waited more than ten years to raise breach claims, he had
abandoned his right to pursue his claim under the doctrine of laches.
On appeal, complainant contends that he did make a breach claim in the
past ten years, and that, since 1996, he has been speaking with Human
Resources Management and an �EEO Specialist.�
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).
The Commission finds the doctrine of laches applicable. The Commission
has consistently held that a complainant must act with due diligence in
the pursuit of his claim or the doctrine of laches may apply. See O'Dell
v. Department of Health and Human Services, EEOC Request No. 05901130
(December 27, 1990). Here, while failing to produce a copy of the
settlement or specifically claim what part of the settlement was breached,
complainant asserts, over ten years after the settlement, that he suffered
loss as a result of an agency breach related to �leave, time and grade,
and steps.� We find that any breach claim related to the losses claimed
by complainant, given a reasonable time for the agency to execute the
terms, should have occurred no later than one to two years after the
1991 or 1992 agreement. As noted above, however, complainant waited
over ten years to allege breach.
Although complainant asserts on appeal that he made a breach claim as
early as 1996, complainant's unsubstantiated contention, even if assumed
to be true, is insufficient to justify an extension of the time for filing
his breach claim or to show that he acted with due diligence. See Baldwin
County Welcome Center v. Brown, 466 U.S. 147, 151 (1984) (per curiam)
("One who fails to act diligently cannot invoke equitable principles
to excuse lack of diligence"); Rys v. United States Postal Service,
886 F.2d 443, 446 (1st Cir. 1989) ("to find succor in equity a Title
VII plaintiff must have diligently pursued her claim").
Accordingly, the agency's decision is 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
September 22, 2003
__________________
Date