Damion M.,1 Complainant,v.Dr. David J. Shulkin, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency.

Equal Employment Opportunity Commission

Feb 7, 2018

0120172423 (E.E.O.C. Feb. 7, 2018)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Damion M.,1
Complainant,

v.

Dr. David J. Shulkin,
Secretary,
Department of Veterans Affairs
(Veterans Health Administration),
Agency.

Appeal No. 0120172423

Agency No. 200P-0691-2013102399

DECISION

Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC
or Commission) from a final decision (FAD) by the Agency dated June 7, 2017, 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 Program Analyst,
GS-0343-13, at the Agency’s Sepulveda Ambulatory Care Center in Los Angeles, California.
Believing that the Agency subjected him to unlawful discrimination, Complainant contacted an
Agency EEO Counselor to initiate the EEO complaint process. On July 11, 2013, Complainant
and the Agency entered into a settlement agreement to resolve the matter. The settlement
agreement provided, in pertinent part:

2. Agency Obligations: The Agency shall:

a. Reassign the Aggrieved Party/Complainant to the bargaining unit position
of Program Analyst, GS-0343-13, working in Mental Health supporting

1 This case has been randomly assigned a pseudonym which will replace Complainant’s name
when the decision is published to non-parties and the Commission’s website.
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Community Care with the FTE and duty station being annotated at the
Sepulveda Ambulatory Care Center.

b. Grant the Aggrieved Party/Complainant an ad hoc tele-work arrangement,
agreement [sic]. This arrangement shall remain in effect as long as the
employee is entitled to Reasonable Accommodation for the employee’s
health issues or for cause as described in VA policy #10-10A-10A2-5.

By email to the Agency dated May 9, 2017, 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 breached the settlement agreement by
reassigning Complainant to a new position. In its June 7, 2017 final decision, the Agency
concluded it did not breach the settlement agreement.

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, paragraph 2a of the settlement agreement required the Agency to reassign
Complainant to a Program Analyst position in “Mental Health, supporting Community Care” at
its Sepulveda Ambulatory Care Center. As Complainant acknowledges, in 2013 the Agency
reassigned him as required. He worked in that position until 2017 when he was assigned to a
position in Community Engagement and Reintegration Services. In Complainant’s view, the
2017 reassignment breached the provisions of paragraph 2a of the settlement agreement by
removing him from the position in Mental Health.

The settlement agreement does not entitle Complainant to encumber the Program Analyst
position in perpetuity. The Commission has held that a settlement agreement that places a
complainant into a specific position, without defining the length of service or other elements of
the employment relationship, will not be interpreted to require the agency to maintain the
complainant in the identical job forever. See Parker v. Department of Defense, EEOC Request
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No. 05910576 (August 29, 1991); Papac v. Department of Veterans Affairs, EEOC Request No.
05910808 (December 12, 1991); Elliott v. United States Postal Service, EEOC Appeal No.
01970474 (August 27, 1997). In the present case, the placement of Complainant in another
position four years after the 2013 reassignment was an action outside the scope of the agreement
and was not a breach.

Implicitly acknowledging the foregoing rule, Complainant argues that the term of his
reassignment is not indefinite but rather is specified by the following provision of paragraph 2b:
“This arrangement shall remain in effect as long as the employee is entitled to Reasonable
Accommodation for the employee’s health issues.” In our view, Complainant has misinterpreted
the plain meaning of this settlement agreement provision. The quoted language from paragraph
2b governs the length of the Agency’s obligation to provide Complainant with telework as a
reasonable accommodation. So far as the record reveals, the Agency continues to permit
Complainant to telework in his newly assigned position. The timing provisions of paragraph 2b
are not implicated by the Agency’s 2017 reassignment action.

CONCLUSION

For the foregoing reasons, we conclude that the Agency did not breach the settlement agreement.
Accordingly, the Agency’s final decision is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
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. A party
shall have twenty (20) calendar days of receipt of another party’s timely request for
reconsideration in which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405;
Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110),
at Chap. 9 § VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the
Director, Office of Federal Operations, Equal Employment Opportunity
Commission. Complainant’s request may be submitted via regular mail to P.O. Box 77960,
Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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.
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§ 1614.604. The agency’s request must be submitted in digital format via the EEOC’s Federal
Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). 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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may
request permission from the court to proceed with the civil action without paying these fees or
costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may
request the court to appoint an attorney for you. You must submit the requests for waiver of
court costs or appointment of an attorney directly to the court, not the Commission. The
court has the sole discretion to grant or deny these types of requests. Such requests do not alter
the time limits for filing a civil action (please read the paragraph titled Complainant’s Right to
File a Civil Action for the specific time limits).
FOR THE COMMISSION:

______________________________ Carlton M. Hadden’s signature
Carlton M. Hadden, Director
Office of Federal Operations

February 7, 2018
Date