Michael D. Bibey, Complainant,v.Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionNov 9, 2004
01A44711 (E.E.O.C. Nov. 9, 2004)

01A44711

11-09-2004

Michael D. Bibey, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.


Michael D. Bibey v. Department of Veterans Affairs

01A44711

11-09-04

.

Michael D. Bibey,

Complainant,

v.

Anthony J. Principi,

Secretary,

Department of Veterans Affairs,

Agency.

Appeal No. 01A44711

DECISION

Complainant filed a timely appeal with this Commission from a final

determination by the agency dated May 13, 2004, finding that it was in

compliance with the terms of the December 26, 1991 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:

The [agency] agrees to: . . .

Release all employment information through the Personnel Office to

include only the dates of employment, duties, final wage rate and reason

for resignation. . . . No other information concerning the quality of

[complainant's] work nor the circumstances of his leaving the employment

of the [agency] other than by resignation, will be divulged.

By letter to the agency dated March 31, 2004, complainant alleged that

the agency was in breach of the settlement agreement. Accompanying that

letter was a Compensation and Pension Examination report dated January 5,

2004, wherein complainant highlighted the following sentence:

�Apparently he left the hospital that same year after signing a settlement

agreement.�

Complainant appeared to be arguing that this information constituted

a disclosure of employment information, in violation of the December

1991 settlement agreement. On appeal, he argues, in essence, that the

agency entered into the December 1991 settlement agreement in bad faith.

Because complainant waited nearly thirteen years to raise such a claim,

he failed to act with due diligence in pursuing it, and consequently,

the doctrine of laches is applicable. See Wright v. United States

Postal Service, EEOC Request No. 05990429 (September 10, 1999), citing

Walker v. Dept of the Treasury, EEOC Request No. 05960679 (December 12,

1997), and O'Dell v. Dept. of Health and Human Services, EEOC Request

No. 05901130 (December 27, 1990) (doctrine of laches is applicable

because appellant waited twelve years to bring her claim).

As to the breach claim itself, 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 its final determination, the agency noted that, according to the

physician who examined complainant in January 2004, he only became

aware of the settlement when complainant raised it with him during the

course of the examination. The final determination also noted that

the specifics of the settlement agreement were not discussed, and that

absent complainant's reference to that agreement, the physician would

never have known about it. In an email to the EEO manager dated April

26, 2004, the physician stated:

In this case [complainant] reported to me the VA job injury, and leaving

that job on settlement, without any information about the settlement (no

settlement information, just the word �settlement�). If [complainat]

did not tell me about his job injury and settlement, . . .or did not

mention the word �settlement,� I would never have known about it.

The record thus corroborates the agency's explanation for the reference to

the December 1991 settlement agreement in the Compensation and Pension

Examination report dated January 5, 2004. Complainant has not presented

any documents, affidavits, or any other evidence tending to show that

an agency official, employee, or representative, disclosed information

about the settlement to the examining physician. He has therefore

not shown that the agency violated provision 2(c) of the December 1991

settlement agreement.

Accordingly, the agency's final determination finding no breach of the

December 1991 settlement agreement 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

____11-09-04______________

Date