0120114206
12-21-2012
Alfonso G. Ramirez, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Alfonso G. Ramirez,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120114206
Agency No. 200P-2457
DECISION
Complainant filed a timely appeal with this Commission from the Agency's response dated July 11, 2011 to Complainant's allegation of breach, finding that it was in compliance with a December 1, 2004 settlement agreement. See 29 C.F.R. � 1614.402; 29 C.F.R. � 1614.504(b); and 29 C.F.R. � 1614.405.
BACKGROUND
On December 1, 2004, Complainant and the Agency entered into a settlement agreement to resolve a matter pursued through the EEO complaint process. The settlement agreement provided, in pertinent part, that:
2. The Southern Arizona VA Health Care System (SAVAHCS) agrees to:
a. Establish a new position for [Complainant], organizationally titled Registry Coordinator, to be classified at the GS-8 level.
b. No probationary period will be required in the new position.
c. Pay [Complainant] backpay (in the amount of $13,530.62 as of December 1, 2004) and interest, less normal deductions, in accordance with the terms of the Back Pay Act retroactive to the date the GS-6 Target GS-8 position he was non-selected for was filled in July 2000. [Complainant] will receive all grade and step increases at appropriate times resulting in a current grade and step of GS-8, Step 3 in the new position.
d. Pay [Complainant] legal fees of $678 in legal costs associated with his complaint.
e. Pay [Complainant] compensatory damages in the amount of $20,000 which constitutes full reimbursement for all medical costs, mental anguish, and pain and suffering associated with his complaint. [Complainant] is responsible for any tax consequences associated with this payment.
f. Make all reasonable efforts to effectuate the terms of this agreement within 30 days.
The record reflects that by letter to the Agency dated June 18, 2011, Complainant alleged breach of provision 2.a.1 Specifically, Complainant alleged that he is being asked to perform responsibilities outside of the terms of the subject settlement agreement, and that any requirement to perform duties beyond that of the Registry Coordinator was, therefore, a violation of the agreement.
In a letter to Complainant dated July 11, 2011, the Human Resources Manager (HRM) concluded that it had not breached provision 2.a. HRM stated that after the signing of the agreement, a new GS-8 Registry Coordinator position was created for Complainant and a position description to support classification at the GS-8 level was issued on January 28, 2005. HRM further stated that the subject settlement agreement is silent as to the matter of the specific duties related to the subject position, other than to stipulate that the position would be classified at the GS-8 level. HRM noted that the position description for the subject position includes duties related to the job requirements as a Registry Coordinator, and is fully supportive of the classification at the GS-8 level.
HRM noted that on October 8, 2010, Complainant emailed the Chief (C1) of the Business Service Line alleging breach of provision 2.a., as a consequence of the duties that had been assigned to him. HRM further noted that on November 19, 2010, C1 met with Complainant and his union representative to issue a memorandum that provided a clarification of expectations related to the performance of Complainant's duties. HRM noted that the memorandum also provided Complainant a grace period. During this grace period, some of Complainant's duties were temporarily reassigned to other employees in order to give him sufficient time to catch up on his backlogged work.
Furthermore, HRM stated that in regard to the written counseling presented to Complainant by his supervisor (S1) on June 16, 2011, S1 exercised due diligence by informing Complainant of her concerns relating to his performance and providing an appropriate period of time for him to show improvement before proceeding to the issuance of a formal performance improvement plan. As a result, HRM determined that it was in full compliance with the settlement agreement.
The record reflects that while Complainant contacted Agency management in an effort for resolution, the Agency did not issue Complainant a final decision on his claim of breach. Therefore, Complainant filed his appeal with the Commission.
The record contains a copy of C1's memorandum to Complainant dated November 17, 2010. Therein, C1 stated that on October 21, 2010, he met with Complainant concerning his breach allegations. C1 further stated that Complainant claimed he had a heavy workload and would like to have the workload associated with his position reduced. C1 stated that he clarified his expectations of Complainant's duties in order to assist him in eliminating backlogged work. Specifically, C1 stated that S1 will assign specific tasks to Complainant effective December 1, 2010 and that during the relevant period Complainant's other workload "during this time has been reassigned to other stuff. Effective January 1, 2011, you will be expected to resume the full range of duties identified in your Position Description as part of your daily work. Our focus here is to support you with your workload so you can be completely caught up by January 1, 2011."
With respect to Complainant's request to have his position description re-drafted and removing the duties he cited as not having included in the settlement agreement, C1 stated "I would point out that the Master Agreement, Article 9, Section 1.E states 'Employees dissatisfied with the classification of their positions should first discuss the problem with their supervisors. If a supervisor is unable to resolve the issue to the employee's satisfaction, the employee can discuss the matter with the Human Resource Manager or appropriate staff member who will explain the basis for the classification/job grading.' Please assure you follow this process."
Complainant, on appeal, argues that the Agency breached the instant agreement "by imposing upon Appellant, under penalty of demotion or termination, duties not agreed upon in the settlement agreement." For instance, Complainant argues that C1's November 17, 2010 memorandum "does not address the issue of settlement agreement breach. Moreover, Appellant was not required to perform the duties enumerated in the memorandum. To reiterate, Appellant has been allowed to perform the duties of Registry Coordinator unhindered for approximately (8) eight years. Even after the 19 November 2010 Memorandum by the chief of the Business Line, Appellant was allowed to precede with his Registry coordinator duties (absent former GS-6 duties) for approximately 7 months, until a personality conflict arose between Appellant and [his immediate supervisor] (emphasis in its original)."
In response, the Agency argues that the instant appeal should be dismissed based on Complainant's untimely breach claim. The Agency argues that on October 21, 2010, Complainant alleged breach of provision 2.a. and that HRM responded in writing on November 17, 2010 addressing the breach claim. The Agency argues that if Complainant was not satisfied with HRM's response, he needed to submit his breach allegation to the Agency EEO Manager within 30 days. Instead, Complainant waited approximately nine months and filed his appeal with the Commission on August 15, 2011. However, assuming the breach claim was timely raised, the Agency also found it did not breach provision 2.a. of the settlement agreement.
Finally, the Agency argues that if Complainant's appeal is not dismissed, it requests that the instant case be remanded for an investigation of the breach determination case and issuance of a final decision.
ANALYSIS AND FINDINGS
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).
As a threshold matter, we find that Complainant's breach allegation was timely raised. A review of the Agency's November 17, 2010 "determination" shows that the Agency did not provide Complainant with appeal rights. We further note that in response to Complainant's appeal, the Agency stated that if we find Complainant's breach claim timely, that it requests the matter be remanded to the Agency management so they can address the breach claim.
The record reflects that Complainant raised the breach claim with the Agency's HRM on June 18, 2011. We further note that on July 11, 2011 HRM responded to Complainant's allegations. The Agency acknowledges that Complainant raised a breach claim as manifested by its response to Complainant's appeal, referenced above. By contacting the HRM, Complainant provided the Agency with sufficient notice of his allegation of settlement breach, and therefore, his allegation was raised in a timely manner. We now turn to the merits of Complainant's breach regarding provision 2.a.
Upon review, we find that the Agency complied with provision 2.a. Provision 2.a. provides for an affirmative Agency obligation to establish a new position for Complainant to be titled as Registry Coordinator, and classify the new position at the GS-8 level following the signing of the instant agreement. Complainant asserts, however, that he is being asked to perform responsibilities outside of his newly established Registry Coordinator position. However, the record supports a determination that the position description for Registry Coordinator properly identified the duties associated with that position. If Complainant had wanted to be placed in a Registry Coordinator position with specific duties following the execution of the settlement agreement, he should have included such a provision as part of the subject agreement. See Jenkins-Nye v. General Services Administration, EEOC Appeal No. 01851903 (March 4, 1987).
The Agency's finding of no breach of provision 2.a. of the December 1, 2004 settlement agreement was proper and 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), 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
December 21, 2012
__________________
Date
1 The record does not contain a copy of Complainant's June 18, 2011 letter alleging breach of the instant agreement.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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