01A04576
11-24-2000
Robert L. Foster, Complainant, v. Hershel W. Gober, Acting Secretary, Department of Veterans Affairs, Agency.
Robert L. Foster v. Veterans Affairs
01A04576
November 24, 2000
.
Robert L. Foster,
Complainant,
v.
Hershel W. Gober,
Acting Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A04576
Agency Nos. 98-1493
98-3806
DECISION
Complainant filed a timely appeal with this Commission from a
determination by the agency dated May 9, 2000, finding that it was in
compliance with the terms of the March 27, 2000 settlement agreement into
which the parties entered.<1> 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, that:
(1) The Complainant agrees to retire effective the first day he completes
25 years of federal service. The parties understand the Complainant's
service computation date to be such that he should complete 25 years
as of November 7, 2000. This agreement will serve as the Complainant's
letter of retirement and may not be withdrawn.
(2) The Complainant will be carried in a pay status from the date of
this agreement and be switched to leave without pay as of the day that
he will not be on leave without pay for more than six months in the
calendar year prior to his retirement. The
intent of this provision is to insure that the leave without pay will
not interfere with the Complainant being credited with 25 years of
government service.
(3) The agency will calculate the amount of gross pay that the Complainant
will earn while on a pay (non-duty) status. This amount will then be
subtracted from a lump sum award (non wage) of $50,000 payable to the
Complainant as soon as possible following this settlement agreement.
The agency agrees that it will process the payment of this immediately and
that payment should occur within 10 days of the date of this agreement.
(4) The Complainant agrees that he will not seek future employment with
the Department of Veterans Affairs.
The agency will agree to pay the sum of Five Thousand Dollars ($5,000)
to the law office of [attorney identified by name] within 45 days of
this settlement as payment for all attorneys fees in this case.
This agreement is in full and final settlement of this complainant [sic]
and all pending complaints, appeals or suits by the Complainant in this
or any other forum. This agreement does not constitute an admission by
either party of any fact or issue in this or any other case. The parties
agree that this complaint may be withdrawn as settled.
The Parties enter into this agreement freely and with advice of counsel
and with full understanding of the conditions and terms contained in
this agreement.
This document constitutes the entire agreement between the parties and
there are no other terms than those specified within.
By letter to the agency dated May 5, 2000, complainant alleged that
the agency breached the settlement agreement, and requested that the
agency specifically implement the terms. Specifically, complainant,
through his representative, alleged that the agency failed to carry
complainant in pay status though April 27, 2000, so his newly increased
elected life insurance would be in effect for his retirement on November
7, 2000. Complainant contends that this term was verbally agreed to
by the parties before an EEOC Administrative Judge (AJ) on the day the
agreement was entered. According to complainant, �this issue was a
pivotal point� in his decision to enter the settlement agreement.
On May 9, 2000, agency counsel issued a letter to complainant finding
that it was in compliance with the agreement.<2> Specifically, the
agency determined that the settlement agreement did not contain any
discussion of a � life insurance question other than the effective date
of the insurance and how to keep [complainant] in a pay status through
that date.� The agency further determined that the alleged term raised
by complainant conflicts with OPM regulations and therefore would not
have been included in the agreement.
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).
Complainant argues that a verbal agreement was reached before an AJ,
wherein complainant would be able to carry his increased life insurance
when he retired in November 2000. This term, however, is not reflected
in the text of the settlement agreement. We note that EEOC Regulation
29 C.F.R. � 1614.603 provides that "Any settlement reached shall be
in writing and signed by both parties and shall identify the claims
resolved." The Commission has upheld an oral settlement agreement where
an agreement was formed during a hearing before an EEOC Administrative
Judge and transcribed by a court reporter. See Acree v. Department of
the Navy, EEOC Request No. 05900784 (October 4, 1990). In Acree, the
Commission noted that the hearing transcript evidenced the agreement
between the parties and that the subsequent written version of the
agreement reflected the terms of the oral agreement that was evidenced
in the hearing transcript. We find that the present circumstances are not
sufficiently analogous, as the record does not reflect that the purported
settlement provision addressed by complainant was transcribed during
a hearing. Moreover, the settlement agreement clearly provides that
the document �constitutes the entire agreement between the parties and
there are no other terms than those specified within� (emphasis added).
Therefore, we find that the agency correctly concluded that the settlement
agreement entered on March 27, 2000, had not been breached.
Accordingly, the agency's decision finding that it was in compliance
with the agreement was proper and is hereby AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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
November 24, 2000
__________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
__________________
Date
______________________________
1On 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 29 C.F.R. Part 1614 in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.
2On appeal, the agency states that while the Deputy Assistant Secretary of
Resolution Management is responsible for determinations regarding alleged
breaches, the agency counsel erroneously believed that the facility
Director held this duty and responded directly to the breach claim in her
May 9, 2000 letter. The agency acknowledges that although the Deputy
Assistant Secretary should have issued the decision, the agency's May 9,
2000 determination of no settlement breach was nevertheless proper.