0120140840
04-23-2014
Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120140840
Agency No. 2003-0549-2011102552
DECISION
Complainant filed a timely appeal with this Commission from a final decision by the Agency dated February 24, 2014, finding that it was in compliance with the terms of a November 19, 2012 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 November 19, 2012, Complainant and the Agency entered into a settlement agreement to resolve a matter that was pursued in the EEO complaint process. The settlement agreement provided, in pertinent part, that:
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3. The current EMS Chief, [EMS Chief], agrees to hold monthly supervisory staff meetings between her and EMS supervisory staff in order to improve communications between management, supervisors and staff.
4. The current EMS Chief further agrees to provide overtime opportunities to EMS supervisory in a fair and equitable way. Specifically, the current EMS Chief agrees to maintain a rotating overtime roster of EMS supervisors based on seniority. Once it's determined by the Agency that a need for a supervisor or supervisors to work overtime exists, the next available supervisor or supervisors on the roster will be offered the opportunity to work overtime. The Complainant understands that if a supervisor declines an opportunity to work overtime he/she will not be offered another opportunity until every other supervisor has been offered a similar opportunity.
5. The current EMS Chief further agrees to implement, on an annual basis, Civility, Respect, Engagement in the Workplace (CREW) training for all EMS staff.
6. The Agency further agrees to provide the Complainant access to all EMS storage and equipment closets, and EMS equipment needed to perform her duties and responsibilities as a EMS supervisor.
7. The Agency further agrees to provide one (1) EMS trainer for one (1) sixteen (16) hour weekend third shift to train Complainant and/or her staff on floor care and Operating Room cleaning procedures.1
By letter to the Agency dated December 4, 2013, Complainant alleged that the Agency breached provisions 3 - 7. Specifically, Complainant alleged that in regard to provision 3, meetings were "not continual in nature. Meeting notes have not been scribe and disseminated." Regarding provision 4, Complainant alleged that overtime opportunities were not offered fairly and equitably.
Further, Complainant alleged that in regard to provision 5, the CREW training was not conducted. Regarding provision 6, Complainant stated that access and keys or equipment were not fully implemented. Specifically, Complainant stated that she "has been reassigned to evening tour, so all the equipment she needs is readily available because there are other supervisors and folks with keys available, but absence of this as always the key to the equipment room is in the supervisor's office."
With respect to provision 7, Complainant alleged that EMS training for one 16 hour weekend shift to train her and/other staff on floor care and Operating Room cleaning procedures was never provided.
In its February 24, 2014 final decision, the Agency concluded that Complainant's breach allegations concerning provision 3 was untimely raised. Specifically, the Agency found that Complainant first learned of the breach as early as November 16, 2012 and December 12, 2012, but failed to pursue her breach allegation until December 2013. Moreover, the Agency found that even if Complainant's breach allegation was timely raised, the EMS Chief conducted supervisory meetings on the following dates: November 14, 2012; February 9, 2013; September 25, 2013; October 9, 21, and 28, 2013; November 4, 18, and 25, 2013; December 2, 13, 16, 23, and 30, 2013; January 6, 13, 23 and 27, 2014; and February 3 and 10, 2014.
The Agency acknowledge that monthly meetings were not held consistently from November 2012 until September 2013 following the signing of the agreement. The Agency stated, however, the Medical Center provided documentation indicating that they are in compliance of provision 3. Specifically, the record reflects that from September 2013 to present, the Medical Center conducts supervisory meetings more than once a month.
With respect to Complainant's allegation that the Medical Center had not scribed and disseminated the monthly notes, the Agency noted that Complainant was reading requirements in the instant agreement which simply were not there. The Agency also noted that there was no provision in the agreement that required the meetings would be scribed or disseminated.
The Agency also found that Complainant's breach allegations concerning provisions 6 and 7 were untimely raised. Specifically, the Agency found that Complainant first learned of the breach as early as November 16, 2012 and December 12, 2012, but failed to pursue her breach allegations until December 2013. Moreover, the Agency found that even if Complainant's breach allegations concerning provision 6 were timely raised, the Agency found that Agency management complied with the subject provision. Specifically, the Agency noted that in regard to provision 6, the record reflects that on April 12, 2014, Complainant received a set of keys for EMS. The Agency noted, however, that the record does not reflect that Complainant had access to EMS storage and equipment closets.
Further, the Agency found provision 6 was also too vague to enforce. Specifically, the Agency determined that all supervisors should have access to storage and equipment closets, and EMS equipment needed to perform their duties as an EMS supervisor.
With respect to provision 7, the Agency determined that because Complainant did not pursue her breach claim in a timely manner, her claim that the subject provision was breached is dismissed.
With respect to provision 4, the Agency found that this provision was void because it was too vague and generalized to enforce, and does not confer on Complainant any benefit that she was not already entitled to as an employee. Specifically, the Agency determined that Agency procedures already indicate that overtime should be distributed fairly and equitably.
With respect to provision 5, the Agency found breach because the Medical Center did not provide documentation to show that the current EMS Chief conducted the annual 2013 CREW training for all EMS staff.
Complainant did not raise any new contentions on appeal. The instant appeal followed.
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).
Provision 3
Upon review, we find that Complainant's breach claim concerning provision 3 was untimely raised. The settlement agreement informed Complainant that if she believed the Agency had failed to comply with the terms of the agreement, she was required to notify the Deputy Assistant Secretary for Resolution Management of the alleged noncompliance within 30 calendar days. However, as even assuming that Complainant's breach allegations were timely raised, we note that the Agency complied with provision 3.
Provision 3 provides for an affirmative Agency obligation to assure that the current EMS Chief would conduct monthly supervisory staff meetings between her and EMS supervisory staff in order to improve communication between management, supervisors and staff. The record contains copies of the agenda for the supervisory staff meetings that took place on the following dates following the signing of the instant agreement: August 30, 2013; September 25, 2013; October 9, 21 and 28, 2013; November 4, 18, and 25, 2013; December 2, 16, and 30, 2013; and January 6, 2014.
The record also contains copies of the sign-in sheets for the monthly supervisory meetings on the following dates: November 14, 2012 and February 9, 2013. Finally, the record contains copies of email notification dated December 13, 23 and 30, 2013, January 13, 23 and 27, 2014 and February 3 and 10, 2014, to all supervisors, including Complainant, asking them to attend the monthly supervisory meeting every Mondays.
Furthermore, Complainant alleged that that the intent of the parties was that the Medical Center would scribe and disseminate the monthly notes. However, provision 3 does not specify that the Medical Center would scribe and disseminate the monthly note. If Complainant had wanted to the monthly notes be scribed and disseminated, she should have included it as part of the subject settlement agreement. See Jenkins-Nye v. General Services Administration, EEOC Appeal No. 01851903 (March 4, 1987).
Provisions 6 and 7
We find it unnecessary to address the Agency's assessment that the breach claims regarding these provisions were untimely. Even assuming that Complainant's breach allegations were timely raised, we note that the Agency complied with provisions 6 and 7. Regarding provision 6, the Agency agreed to provide Complainant "access to all EMS storage and equipment closets, and EMS equipment needed to perform her duties and responsibilities as a EMS supervisor." Despite any potential ambiguity, we note that the Agency indeed made efforts to meet the spirit of this provision. Specifically, we note that the record reflects that on April 12, 2014, Complainant received a set of keys for EMS. However, Complainant did not have access to EMS storage and equipment closets and the EMS equipment to perform her duties and responsibilities as EMS supervisor.
Provision 7 provides for an affirmative Agency obligation to provide a EMS trainer for one (1) sixteen (16) hour weekend third shift to train Complainant and/or her staff on floor care and Operating Room cleaning procedures. The record contains a copy of an EMS Supervisor's statement dated January 11, 2014. Therein, the EMS Supervisor stated "during the month of June 2013, I was asked by [Agency official] to train/re-train all EMS employees how to PM/operator all EMS equipment. [2nd shift part-time supervisor] and [Complainant] (3rd part time supervisor) was trained on Prevented Maintenance and operating the equipment. [2nd shift supervisor] and [Complainant] were trained on the Advance Auto Scrubber Rider, the Advance Auto Scrubber walk behind and the Advance Burnishes walk behind. The class was from 08:00-09:30 am for 1.5 hours. All part time employees were training including [three named employees] (3rd shift part time). [3rd shift housekeeper] was not trained, due to [3rd shift housekeeper] was on light duty."
Provision 4
Provision 4 provides for an affirmative Agency obligation to assure that the current EMS Chief agreed to provide overtime opportunities to EMS supervisory in a "fair and equitable" way. This provision does not confer on Complainant any benefit that she was not already entitled to as a matter of law. See Walters v. U.S. Postal Service, EEOC Appeal No. 01A45165 (November 24, 2004). We find that this provision is void for lack of consideration. However, given that consideration was exchanged through the remaining portion of the agreement, we do not find that the settlement is invalid in its entirety, but rather reformed without the mentioned provision.
Provision 5
After careful consideration, we find that Complainant met her burden of establishing that the Agency breached provision 5. Therefore, to the extent that it has not already done so, we order the Agency to specifically supplement the record with evidence whether the Agency was in compliance with provision 5 concerning CREW training.
In summary, based on a review of the record, we AFFIRM the Agency's finding of no breach of provisions 3, 4, 6 and 7. However, as to regard to Complainant's allegation of breach of provision 5 of the November 19, 2012 settlement agreement, we REMAND this matter to the Agency for a supplemental investigation in accordance with the ORDER below.
ORDER
The Agency is ORDERED to take the following action, regarding provision 5:
The Agency shall supplement the record with evidence addressing whether the Agency was in compliance with provision 5 of the November 19, 2012 settlement agreement concerning CREW training. Within 30 days of the date this decision becomes final, the Agency shall issue a new decision on whether it has complied with the portion of the settlement agreement providing CREW training for all EMS staff members.
A copy of the new decision regarding this provision shall be sent to the Compliance Officer as referenced herein.
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 23, 2014
__________________
Date
1 The settlement agreement also provides for the Agency to remove Complainant's Letter of Reprimand dated April 25, 2011 from her official personnel file; and change Complainant's performance rating for the period of October 1, 2009 to September 30, 2010 from "Fully Successful" to "Outstanding" and award her a performance award for this "Outstanding" rating in the amount of $1,000. These provisions are not at issue in the instant case.
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Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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