0120110073
02-03-2012
____________________, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
____________________,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120110073
Agency No. 200I06732006103505
DECISION
Complainant filed a timely appeal with this Commission from a final
decision (FAD) by the Agency dated August 4, 2010, 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 Dental Laboratory Technician at the Agency’s Medical Center
facility in Orlando, Florida. Believing that the Agency subjected him to
unlawful discrimination, Complainant contacted an Agency EEO Counselor
to initiate the EEO complaint process. On March 13, 2008, Complainant
and the Agency entered into a settlement agreement to resolve the matter.
The settlement agreement provided, in pertinent part, that:
(1) All promises, conduct and statements made in the course of the
settlement, as well as the terms of this Settlement and Stipulation,
are confidential and will not be disclosed voluntarily to anyone except
to those required in order to approve the terms of this Agreement or
to carry out its terms, to the extent permitted by law. See 5 USC
§ 574. The parties may mutually agree to disclose the terms of this
Settlement and Stipulation to individuals involved in its enforcement,
as necessary, and after execution of the Settlement and Stipulation,
a copy of it will/may be provided to the EEOC Manager, the Office of
Resolution Management and to the Equal Employment Opportunity Commission
By electronic message dated June 7, 2010, Complainant alleged that the
Agency was in breach of the settlement agreement, and requested that
the Agency specifically implement its terms. Specifically, Complainant
alleged that the Agency failed to preserve the confidentiality of the
Agreement when an Agency management official, the Veterans Integrated
Service Network (VISN) 8 Director (AD), disclosed privileged information
about the agreement to a Member of Congress.
In its August 4, 2010 FAD, the Agency concluded it had not breached the
Agreement. The Agency found that, following an earlier breach claim1
filed by Complainant, Complainant contacted his Member of Congress
who subsequently contacted the Agency “concerning [Complainant’s]
questions regarding [his] re-employment status with” the Agency.
In his response to Complainant’s Congressperson, the Agency found,
AD “referenced the terms of the settlement agreement.” The Agency
further found that Complainant was precluded from claiming breach
because Complainant had himself breached the Agreement, by applying for
a position with the Agency in contradiction of a clause in the Agreement
that stipulated Complainant would refrain from seeking or accepting
employment with the Agency.
CONTENTIONS ON APPEAL
On appeal, Complainant denies that he applied for a position with the
Agency in breach of the Agreement. The Agency argues that the instant
claim is a duplicate of the claim addressed in 0120102656.
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).
In the instant case, we find that the Agency has not breached the
Agreement. We note initially that we do not find the instant claim to
a duplicate of the claim addressed in 0120102656. In that decision,
the Commission addressed a May 24, 2010 FAD that addressed a March 30,
2010 breach allegation by Complainant wherein Complainant alleged that
a telephone call he received from an Agency employee on February 9,
2010 constituted a breach of the Agreement. In the instant complaint,
on the other hand, Complainant is alleging that AD’s May 24, 2010
correspondence with a Member of Congress constituted a breach of the
Agreement. Since the two incidents refer to different occurrences on
different dates, we find that the current claim is not duplicative of
the earlier claim.
With regard to whether or not the Agency breached the Agreement by
divulging information to Complainant’s Congressperson, we find
no breach of the Agreement. We note that the Agreement allows for
information to be divulged “to those required in order to approve
the terms of this Agreement or to carry out its terms” and further,
that terms of the Agreement may be disclosed “to individuals involved
in its enforcement, as necessary.” Given that Complainant sought
help from his Congressperson in enforcing the Agreement, we find it
disingenuous for Complainant to then argue that providing information
to his Congressperson about the Agreement constituted a violation of
the Agreement by the Agency. Complainant has not shown that the Agency
divulged terms of the Agreement to anyone else and so we find the Agency
to have been in substantial compliance with the Agreement.
In this decision we do not address the Agency’s argument that
Complainant himself violated the Agreement, nor do we address
Complainant’ arguments on appeal that the Agency created a fraudulent
employment application purporting to have come from Complainant.
Neither argument addresses the sole matter at issue herein, namely,
whether or not the Agency breached the Agreement by divulging information
about the Agreement to Complainant’s Congressperson.
CONCLUSION
Following a review of the record, and for the reasons addressed above, we
find that the Agency has not breached the Agreement and we AFFIRM the FAD.
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), at 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
February 3, 2012
__________________
Date
1 Addressed by this Commission in __________ v. Department of Veterans
Affairs, EEOC Appeal No. 0120102656 (September 23, 2010).
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0120110073
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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