0120121703
06-28-2012
Cynthia Trop, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Cynthia Trop,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120121703
Agency No. 200H05262010101051
DECISION
Complainant filed a timely appeal with this Commission from a final decision (FAD) by the Agency dated January 26, 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 March 22, 2011, Complainant and the Agency entered into a settlement agreement to resolve the matter. The settlement agreement provided, in pertinent part, that:
(5) The Agency agrees to hold weekly meetings among the Physicians of the Urology Service to discuss office or patient matters that surface during the course of the week.
(6) The Complainant and Chief of Urology [named], agree that in the future should there be any dispute or conflicts about Complainant's employment that they will engage in a five (5) day cooling off period. If the dispute or conflict has not been resolved, the parties may use the Office of Resolution Management (ORM) alternative dispute resolution process to attempt to settle any disputes or conflicts.
By letter to the Agency dated November 15, 2011, Complainant alleged that the Agency was in breach of the settlement agreement, and requested that the Agency reinstate her complaints. Complainant alleged that the Agency breached the agreement "numerous times" and has never abided by paragraphs 5 and 6 of the agreement. Complainant also alleged that she has been subjected to retaliation.1
In its January 26, 2012 FAD, the Agency concluded it was not in breach of the agreement. The Agency submitted statements showing that meetings were scheduled for Tuesday mornings to discuss office and patient matters; and Tuesday afternoons to discuss peri-operative and teaching matters. As to the cooling off period, the statement provided indicated that there was no awareness of a time when Complainant requested a "cooling off" period. Further the Agency indicated that Complainant sought mediation in September 2011 before there was any cooling off period. Finally the Agency stated that Complainant was charged absent without leave (AWOL) in October 2011 when she did not report to work on a day her leave had been denied, and she subsequently filed an EEO complaint on the matter.
Complainant did not raise any arguments on appeal.
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, the Commission finds that the Agency has complied with the agreement. Complainant does not point to specific instances where the agreement was breached. To the extent she stated she was retaliated against, the record indicates she filed a subsequent EEO complaint.
The Agency's decision 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
June 28, 2012
__________________
Date
1 As part of the agreement, Complainant's 2010 Proficiency rating was changed from a low satisfactory to an overall satisfactory: and the Agency agreed to rescind a letter dated February 3, 2011 titled "Summary Probationary Review and Convening of Professional Standards Board" and remove the letter from all of Complainant's personnel and professional files, as well as discontinue the Summary Review Board proceeding that was convened on February 18, 2011 to consider Complainant's performance and suitability to continue her employment.
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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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