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