Michael Edney, Complainant,v.Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionDec 8, 1999
01986087 (E.E.O.C. Dec. 8, 1999)

01986087

12-08-1999

Michael Edney, Complainant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.


Michael Edney, )

Complainant, )

)

v. )

) Appeal No. 01986087

Togo D. West, Jr., )

Secretary, )

Department of Veterans )

Affairs, )

Agency. )

____________________________________)

DECISION

On August 4, 1998, complainant filed a timely appeal with this Commission

from a final agency decision (FAD), dated November 18, 1998,<1> finding

that it was in compliance with the terms of the June 10, 1998 settlement

agreement into which the parties entered. See 64 Fed. Reg. 37,644, 37,659

(1999) (to be codified at 29 C.F.R. �1614.402); 29 C.F.R. � 1614.504(b);

EEOC Order No. 960, as amended.<2>

The settlement agreement provided, in pertinent part, that:

(1) The Agency will provide Complainant priority consideration for any

WG-3 equivalent or above position that is posted for the next 24 months.

If no position opens for which Complainant is qualified and/or Complainant

is interested in over the next 24 months, Complainant will have the

option of either having a hearing or extending this Agreement for an

additional 24 months.

(2) It is understood and agreed that it is not a guarantee that the

Complainant will be chosen for the position. However, he will be

considered for the position before anyone else. A legitimate business

reason must be given by the selecting official for not placing Complainant

in the position. If the Complainant does not believe good faith was used

in his non-selection, he can call [an EEOC Administrative Judge] for

assistance. Additionally, Complainant can reopen case number 120-9809173X

and or file an Enforcement Action.

By letter to the agency dated July 28, 1998, complainant alleged that

the agency was in breach of the settlement agreement. Specifically,

complainant alleged that the agency failed to provide him priority

consideration pursuant to paragraphs 1 and 2 of the settlement agreement.

On November 18, 1998, the agency issued a FAD, finding no breach of

the settlement agreement. The agency determined that complainant was

given priority consideration for two positions. The agency stated that

complainant was not selected for one of the postings because he had

recently received a written counseling, which the agency determined

was a legitimate business reason for declining to offer complainant

the position.. The FAD indicated that complainant had been selected

for the second position. The record in this case contains a copy of a

memorandum dated August 24, 1998. Therein, an agency official indicates

that complainant was given priority consideration for a Housekeeping

Aid WG-3 position, and that complainant was selected for the position.

EEOC Regulation 64 Fed. Reg. 37,644, 37,660 (1999) (to be codified

at 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 determines that the agency has complied with the settlement

agreement. The settlement language clearly states that complainant would

be given priority consideration for posted WG-3 positions, or higher

graded positions, for a twenty-four month period. The agreement does not

state that complainant would be guaranteed placement in such a position.

The record reflects that complainant was given priority consideration for

two positions, and that although he was not selected for one position,

he was selected for another. Therefore, the Commission determines

that the agency did not breach the settlement agreement. Accordingly,

the agency's decision finding no breach of the settlement agreement was

proper and is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M1199)

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). 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).

COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S1199)

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:

Dec. 8, 1999

____________________________

DATE Carlton M. Hadden, Acting Director

Office of Federal Operations

CERTIFICATE OF MAILING

For timeliness purposes, the Commission will presume that this decision

was received within five (5) calendar days of mailing. I certify that

the decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

_______________________

_______________________

DATE

Equal Employment Assistant

1The record reveals that complainant's appeal was in response to a July

29, 1998 letter issued by the agency's attorney, informing complainant

that he was given priority consideration. Subsequently, the agency

issued a FAD with appeal rights.

2On November 9, 1999, revised regulations governing the EEOC's federal

sector complaint process went into effect. These regulations apply to all

Federal sector EEO complaints pending at any stage in the administrative

process. Consequently, the Commission will apply the revised regulations

found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the

present appeal. The regulations, as amended, may also be found at the

Commission's website at WWW.EEOC.GOV.