0120101371
05-24-2011
Sean C. Higgins, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Sean C. Higgins,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120101371
Agency No. 200L-0614-2008101948
Hearing No. 490-2009-00042X
DECISION
Complainant filed a timely appeal with this Commission from a final
decision (FAD) by the Agency dated December 22, 2009, finding that it
was in compliance with the terms of the 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked
as a Office Automation Assistant at the Agency’s Memphis VA Medical
Center facility in Memphis, TN. Believing that the Agency subjected him
to unlawful discrimination, he filed a formal complaint. On September 2,
2009, during the hearing process, Complainant and the Agency entered into
a settlement agreement to resolve the matter. The settlement agreement
provided, in pertinent part, that:
(1) The Agency agrees to pay Complainant the sum of $15,000. The
parties agree that this sum represents a total and complete settlement
of all money issues in this matter and that said amount shall be paid
to Complainant in a lump sum no later than 45 days from the date of
this agreement…;
(2) The Agency agrees that any and all documentation relating to
Complainant’s termination on February 29, 2008, will be removed from his
Official Personnel File. Complainant will be placed on Leave Without Pay
for the time period between February 29, 2008, and October 13, 2009; and
(3) The Agency agrees to return Complainant to VA employment
effective October 13, 2009, as a Program Support Clerk (OA) GS-303-05,
in the Education Service at the Memphis VA Medical Center….
On October 30, 2009, the Agency issued a check to Complainant for $15,000.
By emails to the Agency sent from October 23, 2009 to November 30, 2009,
Complainant alleged in part that the Agency breached the settlement
agreement by not timely making the $15,000 payment. He contended that
as a result, he did not have sufficient funds to provide for his 19 year
old son to attend college that semester, and therefore he was unable
to attend. Complainant wrote that the Agency should pay interest for
the delay. In response, he Agency made an interest payment to Complainant
for the delay. It issued Complainant an interest check on November 9,
2009, in the amount of $36.21.
Complainant received a notice of indebtedness dated November 6, 2009,
for $954.08 for an annual leave lump sum payment made, apparently upon
his separation. At this time, his sick leave had not yet been restored.
In his breach emails to the Agency, Complainant contended that the
notice of indebtedness and failure to restore his sick leave breached
the settlement agreement. By email to Complainant dated November 19,
2009, the Agency advised his sick leave balance was being restored, and
he would see it in pay period 23. The Agency explained that because
Complainant was returned without a break in service, regulations derived
from statutes required collection of the lump sum payment, but this
matter could be appealed.
In its December 22, 2009 FAD, the Agency concluded that it substantially
complied with the settlement agreement. It contended that there was
a delay in payment because of Agency fiscal year close out procedures.
It found payment was due by October 17, 2009, was not made until October
30, 2009, and interest was paid for the delay. The Agency found that
the notice of indebtedness and sick leave matters were not covered by
the settlement agreement. Nevertheless, it explained that the notice
of indebtedness was required by 5 C.F.R. § 550.805, and Complainant
had the right to request a waiver under 5 C.F.R. § 5584.
CONTENTIONS ON APPEAL
Complainant questions the Agency’s reasons for delaying payment, and
expresses his dissatisfaction about the notice of indebtedness. He does
not raise the sick leave restoration matter, or ask that the settlement
agreement be rescinded. In opposition to the appeal, the Agency asks
that its final decision be affirmed. It writes Complainant was advised
that if he believed the notice of indebtedness or sick leave restoration
matters were discriminatory, he should contact an EEO counselor.
ANALYSIS
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. Dep’t of Def., 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. Dep’t 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. U.S. Postal Serv.,
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).
Failure to perform in accordance with deadlines specified in a contract
does not necessarily constitute a breach of contract. Time is not
ordinarily of the essence in a contract unless made so by express
stipulation or unless there is something connected with the purpose
of the contract and the circumstances surrounding it which makes it
apparent that the contracting parties intended that the contract must
be performed at or within the time named. Garzino v. Department of the
Army, EEOC Appeal No. 0120072847 (Sept. 27, 2007). Failure to satisfy
a time frame specified in a settlement agreement does not prevent a
finding of substantial compliance, especially when all required actions
were subsequently completed, and the Complainant has not shown that
he was harmed by the delay. Lazarte v. Department of the Interior,
EEOC Appeal No. 01954274 (April 25, 1996).
Regarding the delayed payment of the $15,000, we find that the Agency
is in compliance with the settlement agreement. Complainant did not
insist that a provision be made in the settlement agreement that time
was of the essence for this payment, and the circumstances do not show
this was intended. The delay in payment was not lengthy, i.e., 13 days.
Complainant contended he was harmed by the delay, but given it was not
lengthy, and that the settlement agreement does not show the parties
intended time to be of the essence, we find that the Agency substantially
complied with the settlement agreement. We also take into account that as
remedy, Complainant asked for an interest payment, which the Agency made.
Also, there is no indication in the record that Complainant did not
deposit the checks, indicating ratification of the settlement agreement.
Complainant does not ask that the settlement agreement be rescinded.
Regarding the notice of indebtedness and restoration of sick leave,
we find that these matters are not covered by the settlement agreement.
The FAD is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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 77960,
Washington, DC 20013. 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 (S0610)
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 (Z0610)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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
May 24, 2011
__________________
Date
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0120101371
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120101371