0120140555
04-09-2014
Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120140555
Agency No. 2004-0613-2009104175
DECISION
Complainant filed a timely appeal with this Commission from a final decision (FAD) by the Agency dated October 30, 2013, 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 Physician in Pathology at the Agency's Medical Center facility in Martinsburg, West Virginia.
Believing that the Agency subjected her to unlawful discrimination, Complainant contacted an Agency EEO Counselor to initiate the EEO complaint process. The complaint was investigated. Following the investigation, Complainant requested a hearing before an EEOC Administrative Judge (AJ). On April 17, 2013, Complainant and the Agency entered into a settlement agreement to resolve the matter. On that day, the settlement agreement was entered into record before the AJ in the presence of Complainant, her attorney (Attorney) and the Agency's attorney.
The settlement agreement provided, in pertinent part, that the Agency:
(1) Transfer the Complainant to the position of C&P Physician Reviewer.
(5) As a physician, Complainant will have $1,000 education pay annually
(7) Complainant's position of C&P Physician Reviewer grants Complainant credentials as a physician at the [Agency] Medical Center in Martinsburg, West Virginia, but not privileges with the [Agency's] Medical Center in West Virginia.
By letter to the Agency dated August 23, 2013, Complainant alleged that the Agency was in breach of the settlement agreement, and requested that the Agency specifically implement its terms. Specifically, Complainant first argued that the settlement agreement was subject to rescission because it lacked consideration and was too vague to enforce. The Attorney1 then asserted that the reassignment was impossible and unenforceable. He noted that Complainant's duties included clinical duties such as performing examinations and ordering tests as she should as a physician. However, the settlement agreement rejected providing Complainant with privileges at the hospital. As such, the Attorney argued that having Complainant as a "physician" in a hospital where she dos not have privileges is "impossible" and would be "unconscionable." Since the offer of the position was impossible, the Attorney argued that the Agency engaged in fraud to offer Complainant the position. Further, the Attorney asserted that Complainant does not have much work to perform and she fears that her position will be eliminated. To demonstrate this, the Attorney noted that Complainant was not listed in the organizational chart. The Attorney also noted that Complainant has not been given the $1000 for educational pay.
In its October 30, 2013 FAD, the Agency concluded that it did not breach the settlement agreement. As for the settlement agreement, the Agency indicated that Complainant was offered a reassignment which constituted consideration for her withdrawing her complaint. As such, the Agency found that the settlement agreement was not void. Further, the C&P Physician Reviewer position did not require clinical privileges as asserted by Complainant. The position is for someone who reviews requests from the Agency's Veterans Benefits Administration for a compensation and pension exam. The Reviewer would use his/her medical knowledge to determine what medical specialty of clinician should examine the patient and the amount of time that should be allocated for the examination. This position does not require actually seeing or performing examinations on patients. As to the issue of credentials, the Agency indicated a distinction between that and privileges. Credentials merely involved the process of verifying that the individual's credentials are valid. Privileges involve the grant of providing actual patient care, treatment or services within a facility. The settlement agreement provided credentials and not privileges. Further, the position offered Complainant did not require Complainant to have privileges. Therefore, the Agency found that the provisions within the settlement agreement were consistent. Further, the Agency provided support that this was explained to Complainant during the negotiations. Finally, as to the issue of the education pay, the Agency noted that Complainant has not submitted any paperwork in order to receive the $1000 education pay. As such, the Agency held that it was not in breach of the settlement agreement.
On appeal, the Attorney argued that the Agency ignored the terms of the settlement agreement and unilaterally modified it. In sum, the Attorney asserted that the Agency breached the settlement agreement in four ways. The Attorney indicated that Complainant was not reassigned to a physician position, however the SF-50 did not indicated that actually position she performed. The position did not require a medical degree and Complainant does not have credentials. Finally, the Attorney argued that Complainant was not provided with $1000 each year for "education pay." Therefore, the Attorney asked that the complaint be reinstated to the point where processing ceased.
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).
As an initial matter, we find that Complainant has not shown that the settlement agreement should be void. The provisions of the agreement were clearly stated at the hearing. Complainant and the Attorney were present for the hearing and raised no objection. In exchange for Complainant's withdrawal of the complaint, Complainant was provided with, among other things, a reassignment and $1000 education pay. We find that this constituted adequate consideration. Further, we find that the terms of the agreement are not vague. Therefore, we discern no basis to void the settlement agreement.
In the instant case, the record shows that Complainant is at the Agency performing C&P Physician Reviewer position. Specifically, the record included emails from Complainant noting her title as C&P Physician Reviewer. Complainant has subsequently been provided with a Functional Statement of her position. We note that the SF-50 merely indicated that Complainant was provided a "change in assignment" as a "Physician." However, the Agency has not provided an SF-50 showing Complainant's reassignment to the C&P Physician Review position. In addition, the Agency has not modified its organizational chart to designate Complainant's reassignment to the C&P Physician Reviewer position. We determine that the Agency has placed Complainant in the proper position. However, the Agency has not completed the documentation to match the reality of Complainant's assignment. As such, we find that the Agency shall provide Complainant with an SF-50 and an organizational chart indicating her position as a C&P Physician Reviewer.
It appears that the crux of Complainant's claim of breach is her dissatisfaction with the position she agreed to in the settlement agreement while she was represented by the Attorney. The Agency provided evidence that Agency's Attorney explained the position and noted that it could be filled by a nurse or a physician. As noted before, Complainant was represented by the Attorney at the time of the settlement agreement. Complainant and the Attorney agreed to take this position in order to settle the EEO compliant. We cannot find that her subsequent displeasure with the position should constitute breach.
Complainant then asserted that the position required her to have privileges for the facility. The record indicated that Complainant's privileges lapsed some time in 2010. Complainant argued that she needed privileges to perform her position. However, she provided the assertion without specific evidence. The function statement for the C&P Physician Reviewer clearly noted that the position involved reviewing completed examinations for benefits. However, the position did not require actual clinical care, patient interaction or treatment provided. Therefore, Complainant has not shown that the Agency's failure to provide privileges made it impossible for her to perform her position. Furthermore, the settlement agreement stated that Complainant was given credentials but not privileges. This provision was read into the record by the parties without objection by Complainant or the Attorney. Again, displeasure on Complainant's part about not having privileges does not show that the settlement agreement should be deemed void.
Finally, as to the issue of the education pay, Complainant asserted that she was not provided with the money indicated in the settlement agreement. The Agency argued that Complainant failed to request reimbursement for the money. As such, the Agency asserted that it was Complainant who failed to act. A review of the settlement agreement shows Complainant was to be given $1000 in education pay annually. We note in all of Complainant's arguments, she failed to indicate that she engaged in any activities that would qualify for "education pay." The settlement agreement is silent on how the amount was to be paid, however, it is clear that Complainant was not merely being paid $1000 annually. She was supposed to get "education pay" which, based on the record is a specific type of fund that is provided for Continuing Physician Education to reimburse Complainant for training or travel related to training she received. Complainant did not indicate that she engaged in any such education. Therefore, we conclude that Complainant has not shown that the Agency breached the settlement agreement.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we MODIFY the Agency's determination. We note that the Agency has not breached the settlement agreement but is still required to comply with the ORDER below.
ORDER (C0610)
The Agency is ordered to take the following remedial action:
I. The Agency shall issue Complainant a SF-50 stating that she has been reassigned to the C&P Physician Reviewer position as a physician.
II. The Agency shall modify its organizational chart to show that Complainant occupies the C&P Physician Reviewer position.
The Agency is further directed to submit a report of compliance, as provided in the statement entitled "Implementation of the Commission's Decision." The report shall include supporting documentation verifying that the corrective action has been implemented.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610)
Compliance with the Commission's corrective action is mandatory. The Agency shall submit its compliance report within thirty (30) calendar days of the completion of all ordered corrective action. The report shall be submitted to the Compliance Officer, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. The Agency's report must contain supporting documentation, and the Agency must send a copy of all submissions to the Complainant. If the Agency does not comply with the Commission's order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. � 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commission's order prior to or following an administrative petition for enforcement. See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled "Right to File a Civil Action." 29 C.F.R. �� 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. � 1614.409.
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 (T0610)
This decision affirms the Agency's final decision/action in part, but it also requires the Agency to continue its administrative processing of a portion of your complaint. 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 on both that portion of your complaint which the Commission has affirmed and that portion of the complaint which has been remanded for continued administrative processing. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency, or your appeal with the Commission, until such time as the Agency issues its final decision on your complaint. 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
April 9, 2014
__________________
Date
1 We note that the Agency's determination noted that Complainant changed counsel. As a point of clarification, the Attorney switched firms. However the Attorney remained the same individual representing Complainant before the AJ when the matter was settled as well as when Complainant alleged that the settlement agreement had been breached.
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0120140555
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120140555