0120140821
10-07-2014
Complainant, v. Robert McDonald, Secretary, Department of Veterans Affairs, Agency.
Complainant,
v.
Robert McDonald,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120140821
Agency No. 200H-0632-2012-100110
DECISION
Complainant filed a timely appeal with this Commission from a final decision by the Agency dated August 30, 2013, finding that it was in compliance with the terms of an April 12, 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 April 12, 2012, Complainant and the Agency entered into a settlement agreement to resolve a matter which had been pursued through the EEO compliant process. The April 12, 2012 settlement agreement provided that:
2. The verbal counseling issued to the Complainant on August 1, 2011 has been rescinded effective February 1, 2012. The August 1, 2011 counseling shall not be used as evidence in any future personnel actions.
Complainant alleged that the Agency breached the agreement. On January 4, 2013, the Agency issued a final decision finding that the parties had made a mutual mistake of material fact. Specifically, the Agency found that when Complainant's official personnel file was reviewed, no August 1, 2011 counseling had been found. Further, the EEO Manager stated that the 3-day suspension was not predicated on any August 2011 counseling, but that the suspension was instead based on different performance issues. The Agency therefore determined that "the promise to rescind a counseling [of August 1, 2011] that did not exist was illusionary and a mutual mistake..." Consequently, the Agency found the subject settlement agreement void and indicated that the underlying complaint would be reinstated.
On appeal, the Commission reversed the Agency's finding of no breach and remanded the matter to the Agency for further processing. The Commission's analysis was as follows. The Commission found that the record was insufficient to allow a determination whether a breach of the instant settlement agreement had occurred. The Commission noted, for example, that Complainant's handwritten documents, purportedly alleging breach, were illegible. According to the Agency, the breach claim related to the issuance of a 3-day suspension that was improperly based upon the August 1, 2011 verbal counseling identified above in the settlement agreement. The Agency made reference to actions and comments by the Chief of Staffing Services and the EEO Manager. However, the Commission found that affidavits from these individuals were not part of the record. The Commission found that additional information regarding the EEO Manager's statement that the suspension was not predicated on the August 2011 counseling was also necessary.
Finally, the Commission noted that the Agency asserted that a review of Complainant's official personnel folder revealed no reference to the August 2011 counseling. The Commission noted further that, based on this finding, the Agency reasoned that the counseling did not exist and the parties therefore had made a mutual mistake. The Commission determined, however, that it would appear that the absence of the August 2011 discipline in Complainant's personnel file could, instead, just as readily support a finding of compliance with the terms of the settlement agreement, rather than an illusory promise. The Agency was therefore ordered to supplement the record with evidence clearly showing what action Complainant believed was in violation of the agreement and whether the Agency was in compliance with the settlement terms. The Commission stated that if, as asserted by the Agency, there was never a written counseling issued in August 2011, the Agency would include affidavits to support its contentions. Becker v. Department of Veterans Affairs, EEOC Appeal No. 0120131099 (June 5, 2013).
Following the Commission's June 5, 2013 final decision, the Agency conducted a supplemental investigation which is now the subject of the instant appeal.
In its August 30, 2013 final decision, the Agency found no breach. However, the Agency also determined that the agreement was void because Complainant did not receive anything of value. The Agency stated that it was reopening Complainant's underlying EEO complaint. Specifically, the Agency stated that in response to the Commission's order, the EEO Manager spoke with Complainant on August 14, 2013, and asked Complainant to provide the EEO Manager with a statement concerning his breach claims. Complainant told the EEO Manager that he needed a week to prepare a statement. The Agency noted that it had been over a week since Complainant was notified of the request to submit a statement. However, the requested information had not been received.
Further, the Agency stated that it received a memorandum dated July 5, 2013, from the Associate Chief of Nursing Service concerning Complainant's verbal counseling. Therein, the Associate Chief stated that the verbal counseling Complainant received was not reduced to writing and it was not used to effectuate the suspension that he incurred following the signing of the instant agreement. The Agency determined that Complainant's past work history was used as one of the twelve "Douglas factors" to admonish him. The Agency noted that the record reflects that the verbal counseling Complainant received on July 20, 2011 was considered but the verbal counseling he received on August 1, 2011 was not considered.
Moreover, the Agency determined that Complainant's allegation that the Agency breached the instant agreement when he was issued a proposed suspension was considered a subsequent act of discrimination. The Agency further noted that Complainant initiated EEO contact and pursued a new complaint which resulted in a finding of no discrimination.
In response to Complainant's appeal, the Agency argues that Complainant's appeal was untimely filed. Specifically, the Agency stated that Complainant acknowledged receipt of its letter of determination on September 13, 2013 but did not file his appeal until October 16, 2013.
The instant appeal followed.
ANALYSIS AND FINDINGS
As a threshold matter, we find that the record in this case contains insufficient evidence reflecting Complainant's appeal was untimely filed. The record contains a copy of Complainant's appeal postmarked September 25, 2013 along with the date stamp indicating receipt by the Commission on September 27, 2013. Where, as herein, there is an issue of timeliness, "[a]n agency always bears the burden of obtaining sufficient information to support a reasoned determination as to timeliness." Guy v. Department of Energy, EEOC Request No. 05930703 (January 4, 1994) (quoting Williams v. Department of Defense, EEOC Request No. 05920506 (August 25, 1992)). In addition, in Ericson v. Department of the Army, EEOC Request No. 05920623 (January 14, 1993), the Commission stated "the agency has the burden of proving evidence and/or proof to support its final decisions," see also Gens v. Department of Defense, EEOC Request No. 05910837 (January 31, 1992). Therefore, we find that Complainant's September 25, 2013 appeal to be timely.
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 its decision of June 5, 2013, the Commission considered that possibility that a purported disciplinary action of August 1, 2011, referenced in the subject agreement, was never reduced to writing. We determine that, on remand, the Agency has demonstrated that no written disciplinary action dated August 1, 2011, had ever existed. Therefore, the Agency's initial determination to void the subject settlement agreement, for the reasons which we set forth above, was proper.
In conclusion, the Agency finding that the April 12, 2012 settlement agreement is void is AFFIRMED.
However, in an effort to monitor the Agency's assertion that the underlying complaint has been processed, we will direct the Agency to process the underlying complaint in a manner consistent with the ORDER below.
ORDER
The Agency is ORDERED to resume processing of the underlying matter that was the subject of the April 12, 20121 settlement agreement, from the point where processing ceased. The Agency shall acknowledge to complainant that it has reinstated and resumed processing of this underlying matter.
A copy of the Agency letter of acknowledgement must be sent to the Compliance Officer as referenced below.
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
October 7, 2014
__________________
Date
2
0120140821
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120140821
7
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