Sandra O. Lally, Appellant,v.Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionApr 28, 1999
01973404_r (E.E.O.C. Apr. 28, 1999)

01973404_r

04-28-1999

Sandra O. Lally, Appellant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.


Sandra O. Lally, )

Appellant, )

)

v. ) Appeal No. 01973404

) Agency No. 92-907

Togo D. West, Jr., )

Secretary, )

Department of Veterans Affairs, )

Agency. )

___________________________________)

DECISION

INTRODUCTION

Appellant timely appealed the agency's final decision not to reinstate

her complaint of unlawful employment discrimination that the parties

had settled. See 29 C.F.R. ��1614.504, .402(a); EEOC Order No. 960,

as amended.

ISSUE PRESENTED

The issue on appeal is whether the agency breached a settlement agreement.

BACKGROUND

The record indicates that appellant filed an informal complaint alleging

sexual harassment on the part of an identified agency official.

Thereafter, on June 29, 1992, the parties entered into a settlement

agreement resolving appellant's informal complaint, which provided,

in pertinent part, that:

The agency agreed that the identified agency official would continue in

his position as Chief of Consultation for Nuclear Medicine Service with

his office and presence away from the Nuclear Medicine Clinic except

for Thyroid Clinic and Quality Assurance Meeting as agreed upon.

Thereafter, by letters dated February 5, 1997, and August 20, 1997,

appellant alleged that the agency breached the settlement agreement

when the identified agency official increased his visits to the Nuclear

Medicine Clinic, her workplace, since December 1996. Appellant also

alleged that on August 15, 1997, the identified agency official was

assigned to the Nuclear Medicine Clinic as the Officer on Duty in

violation of the settlement agreement.

By letter dated August 22, 1997, the agency stated that its Medical

Center, as a result of budgetary limitations, conducted a staffing

adjustment of 22 physicians, and they were either reduced in number of

hours of their appointment or were separated from employment. The agency

further stated that as a direct result of this and the retirement of

the former Chief of Nuclear Medicine Service, it was necessary for the

identified agency official to spend up to 50% of his time in the Nuclear

Medicine Clinic in order for the agency to accomplish its patient care

workload. The agency indicated that although it made every reasonable

effort to live up to the agreement, this staffing adjustment caused

its inability to live up to the terms thereof. The agency noted that

it would look into considering reassignment of appellant to another

workplace if she desired.

On appeal, appellant contends that the identified agency official has

recently been assigned as head of the Nuclear Medicine Service.

ANALYSIS AND FINDINGS

EEOC Regulation 29 C.F.R. �1614.504 provides that if the complainant

believes that the agency failed to comply with the terms of a settlement

agreement, the complainant should notify the Director of Equal Employment

Opportunity, in writing, of the alleged noncompliance with the settlement

agreement, within thirty (30) days of when the complainant knew or should

have known of the alleged noncompliance. The complainant may request that

the terms of the settlement agreement be specifically implemented or,

alternatively, that the complaint be reinstated for further processing

from the point processing ceased.

The agency shall resolve the matter and respond to the complainant,

in writing. If the agency has not responded to the complainant, in

writing, or if the complainant is not satisfied with the agency's attempt

to resolve the matter, the complainant may appeal to the Commission for

a determination as to whether the agency has complied with the terms of

the settlement agreement or final decision.

The Commission has held that settlement agreements are contracts between

the appellant and the agency and it is the intent of the parties as

expressed in the contract, and not some unexpressed intention, that

controls the contract's construction. Eggleston v. Department of Veterans

Affairs, EEOC Request No. 05900795 (August 23, 1990). In addition, the

Commission generally follows the rule that if a 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 v. Building Engineering Services,

730 F.2d 377 (5th Cir. 1984). The Commission has followed this rule

when interpreting settlement agreements. The Commission's policy in

this regard is based on the premise that the face of the agreement best

reflects the understanding of the parties.

The record indicates that in the settlement agreement dated June 29,

1992, the agency agreed that the identified agency official's office

and presence would be away from the Nuclear Medicine Clinic except for

Thyroid Clinic and Quality Assurance Meeting. Appellant alleged that the

agency breached the settlement agreement when since December 1996, the

identified official increased his visits to the Nuclear Medicine Clinic,

and in August 1997, he was assigned to that clinic as the Officer on

Duty for two weeks. Upon review of the settlement agreement, we find

that it does not provide for a specific time period during which the

identified agency official was restricted concerning his presence in the

Nuclear Medicine Clinic. The Commission has held that if a settlement

agreement does not include specific duration terms for the employment

relationship which could have been agreed upon, it would be improper

to interpret the reasonable intentions of the parties as binding the

agency to the terms thereof forever. See Parker v. Department of

Defense, EEOC Request No. 05910576 (August 30, 1991)(agreement that

did not specify length of service for position to which appellant was

promoted, was not breached by the temporary detail of appellant two

years after the execution of the agreement). In the present case,

appellant alleged that the agency failed to comply with the terms of

the settlement agreement in and after December 1996, which was 4 years

after the settlement agreement. Under the circumstances before us,

we find that the identified agency official's alleged presence in the

Nuclear Medicine Clinic did not constitute a breach of the settlement

agreement since it occurred beyond the reasonable time period during

which the agency was contractually required to restrict such presence.

Furthermore, appellant does not allege that the identified agency official

was present in the Nuclear Medicine Clinic more than he was allowed under

the settlement agreement before December 1996. In addition, we note that

although appellant indicates on appeal that the identified agency official

has recently been assigned as head of the Nuclear Medicine Service, the

settlement agreement does not cover the subject assignment; thus, the

matter is beyond the scope of the terms thereof. Based on the foregoing,

we find that the agency has not breached the settlement agreement.

CONCLUSION

Accordingly, the agency's decision finding no breach of the settlement

agreement is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0795)

The Commission may, in its discretion, reconsider the decision in this

case if the appellant or the agency submits a written request containing

arguments or evidence which tend to establish that:

1. New and material evidence is available that was not readily available

when the previous decision was issued; or

2. The previous decision involved an erroneous interpretation of law,

regulation or material fact, or misapplication of established policy; or

3. The decision is of such exceptional nature as to have substantial

precedential implications.

Requests to reconsider, with supporting arguments or evidence, MUST

BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this

decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive

a timely request to reconsider filed by another party. Any argument in

opposition to the request to reconsider or cross request to reconsider

MUST be submitted to the Commission and to the requesting party

WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request

to reconsider. See 29 C.F.R. �1614.407. All requests and arguments

must bear proof of postmark and 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 filed on the date it is received

by the Commission.

Failure to file within the time period will result in dismissal of your

request for reconsideration as untimely. If extenuating circumstances

have prevented the timely filing of a request for reconsideration,

a written statement setting forth the circumstances which caused the

delay and 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).

RIGHT TO FILE A CIVIL ACTION (S0993)

It is the position of the Commission that 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.

You should be aware, however, that courts in some jurisdictions have

interpreted the Civil Rights Act of 1991 in a manner suggesting that

a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the

date that you receive this decision. To ensure that your civil action

is considered timely, you are advised to file it WITHIN THIRTY (30)

CALENDAR DAYS from the date that you receive this decision or to consult

an attorney concerning the applicable time period in the jurisdiction

in which your action would be filed. 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 (Z1092)

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:

April 28, 1999

DATE Ronnie Blumenthal, Director

Office of Federal Operations