0120121676
07-27-2012
Christine A. Covie, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Christine A. Covie,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120121676
Agency No. 200P07412011101618
DECISION
Complainant filed a timely appeal with this Commission from a final decision (FAD) by the Agency dated January 24, 2012, 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
Believing that the Agency subjected her to unlawful discrimination, Complainant contacted an Agency EEO Counselor to initiate the EEO complaint process. On April 18, 2011, Complainant and the Agency entered into a settlement agreement to resolve the matter. The settlement agreement provided, in pertinent part, that:
(a) Complainant will be given a temporary assignment ("assignment") not to exceed the end of her current rating period; during the period of the assignment, Complainant will report directly to Director of Administration for VA Purchase Care on a project dealing with pre-authorizations, consistent with her pay grade; Complainant will be provided with a description of the duties of the assignment and the performance standards for those duties.
(b) Complainant will be evaluated on her performance in this position at the end of her current rating period.
(c) The parties will discuss permanent reassignment after no more than 90 days from the date of the reassignment (target date April 24, 2011). If at that time, a permanent reassignment is not available, Complainant will be offered a second 180-day temporary reassignment at the end of the rating period, upon agreement to the terms and conditions of the reassignment by all the parties.
(d) The parties agree that if circumstances arise as described in sub paragraph c above and no agreement can be reached as to a subsequent temporary assignment, such event will not constitute a default or breach of this agreement by either party.
(e) Complainant will have the opportunity to augment her personnel file by providing details of work previously performed; this information will be added as an addendum to her 2010 performance rating
By letter to the Agency dated December 21, 2011, 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 offer her a position at the end of her rating period; she discussed a potential new job on October 11, 2011; her details of her work performed was not added to her 2010 performance rating until December 5, 2011; she was not timely evaluated for her performance as she did not get her performance evaluation until November 9, 2011 (Complainant felt she should have gotten it on October 1, 2011 when her rating period ended); and she was presented with a permanent assignment on November 7, 2011, but by that time Complainant had already accepted a new position in a different component of the Agency.
In its January 24, 2012 FAD, the Agency concluded that it had not breached the agreement. The Agency noted that as to paragraph (a), Complainant was reassigned to the Purchase Care Office and the Director of Program Administration was her supervisor. Complainant received her performance standards on May 18, 2011, and Complainant worked on a project consistent with her pay grade. With regard to paragraphs (b) and (e), the Agency found it had complied within a reasonable amount of time and that no specific time frames were mentioned for implementing the terms. As to paragraph (c), the Agency noted that there had been meeting to discuss Complainant's temporary detail on September 1, and October 12, 2011. A six-month extension of the detail was offered and accepted, but before it could be finalized, Complainant accepted another position outside of Purchase Care. Thus, the facility was precluded from having further discussion regarding a temporary or permanent detail.
The Complainant filed the instant appeal. In her appeal, Complainant primarily disagrees that the Agency acted in a timely fashion.
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 conclude that Complainant has not proven noncompliance with the settlement agreement. It is undisputed that Complainant was placed on the temporary assignment and given her performance standards. When the rating period was over on September 30, 2011, Complainant received her performance appraisal reflecting that work about five weeks later. No timeframe for the appraisal was addressed in the agreement, and there is no evidence that five weeks was an unreasonable length of time. Complainant and a manager discussed her reassignment, but before it could be finalized, Complainant accepted another position outside of Purchase Care. Finally, her comments for her 2010 appraisal were added on December 5, 2011. Given the totality of the circumstances, the Commission finds that the Agency is not in breach of the agreement.
The Agency's decision finding no breach 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
July 27, 2012
__________________
Date
2
0120121676
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120121676