0120113963
12-07-2012
Danius S. Jackson, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Danius S. Jackson,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120113963
Agency No. 200H-0596-2011101839
DECISION
Complainant filed a timely appeal with this Commission from a final decision (FAD) by the Agency dated July 21, 2011, 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 probationary Police Officer at the Agency's VA Medical Center facility in Louisville, Kentucky.
On April 6, 2011, Complainant and the Agency entered into a settlement agreement to resolve his EEO complaint. The settlement agreement provided, in pertinent part, that:
(2b) the Agency will accept Complainant's resignation effective February 25, 2011 and will correct his official personnel file (OPF) to reflect his resignation and remove any documents related to the termination from his OPF.
(2c) the Agency agrees that the Complainant will be treated the same as any other patient while on VA property.
(2d) the Agency agrees to pay the Complainant a lump-sum payment of $950.00. . . [and] that the payment to Complainant will be issued on or before May 20, 2011.
(3b) Both parties also stipulate and agree that this Agreement constitutes the entire understanding between the parties.
(3d) If a provision of this agreement is subsequently determined to be invalid, such provision shall be considered severed, and the invalidity of such provision shall not result in the invalidity of this Agreement.
(3g) The Employee has not waived any rights or claims that may arise after the date this Agreement is signed.
(3h) The Employee has not waived any rights or claims to benefits to which he is entitled.
As further background, the pertinent record shows that Complainant is a disabled veteran. On November 7, 2010, the Agency hired Complainant as a Police Officer through its Excepted Appointment authority for disabled veterans. On February 10, 2011, Complainant contacted an EEO Counselor, claiming the Chief of Police discriminated against Complainant based on his race and disability. The Chief of the Police Service recommended that Complainant be terminated for unspecified "disrespectful conduct." On February 25, 2011, the Agency issued Complainant a Notice of Termination during Probation / Trial Period. The termination letter stated that "supervisors are required to study their employee's potential closely to determine" whether they have the "general character traits or capacity" to meet the requirements for satisfactory service. Complainant was deemed unsuitable. The letter was signed by the Chief of the Human Resources Management Service which handles EEO claims. The termination was effective February 25, 2011.
On that same day, Complainant performed the exit check-out procedure with all of the departments and was cleared by every department.
On March 7, 2011, Complainant again contacted the EEO counselor to amend his complaint. He also subsequently initiated a Whistle Blower complaint, dated March 24, 2011, before an Administrative Judge with the U.S. Merit System Protection Board. On April 6, 2011, the parties entered the subject settlement agreement to resolve both matters.
Although the record shows that Complainant had been cleared of any outstanding debts as of February 25, 2011, the record documents that, by letter, dated April 23, 2011, the Agency's Finance and Accounting Service (finance unit) notified Complainant that an overpayment record has been generated on "his pay account for the pay period ending April 9, 2011" and also acknowledged that the debt was "a result of a personnel change" that occurred on April 9, 2011. The Agency advised Complainant that "interest, computed at the Treasury tax and loan rate, will be assessed from the date of the letter on any part of the debt not paid within 45 days of this letter, along with "an administrative charge to cover the cost of processing a delinquent debt." The letter advised Complainant that he may request a waiver of the repayment if he first acknowledged the validity of the debt.
Further, the record shows that Complainant, a veteran with a disability, comes to the VA Medical Center for medical services. While at the Center on March 1, 2011, May 1, 2011 and May 3, 2011, he was monitored and followed by the Agency's Police. The Agency acknowledged that the police officers detained Complainant. The Agency says that its monitoring of Complainant was for "legitimate police force reasons" related to their concerns about Complainant because of his termination.
On May 5, 2011, Complainant learned that his records had been accessed seven times by the Agency's Police Department.
By communications to the Agency dated May 17 and May 22, 2011, Complainant informed the Agency that he believed the Agency breached the settlement agreement. Specifically, Complainant alleged that the Agency did not comply with the provision to pay him the lump sum of $950.00 by May 20, 2011, because he had not received the payment. He also told the Agency that it breached provision 2b which required that the Agency accept Complainant's resignation effective February 25, 2011, and correct his official personnel file to reflect his resignation on that date, which the Agency did not do. Complainant told the Agency that he considered the claim for $279.92, for the pay period ending April 9, 2011, was a new act of retaliation. Finally, he advised the Agency that it breached the Agreement when it failed to treat him the same as any other patient while on VA property because the Agency subjected him to undue scrutiny and the Agency police officers were tracking him and allowing unauthorized access to his medical records.
On May 27, 2011, the Agency paid the lump sum payment of $950.00, but not within the specified time period. The payment was seven days late.
Agency Decision
In its July 21, 2011 decision, the Agency concluded that it was in compliance with the agreement. The Agency reasoned that it accepted Complainant's resignation and cleared his official personnel record. The Agency found there was no violation with regard to the debt charge, because the Agency contends that the document was automatically generated by the finance unit upon the processing of his discharge papers and is issued to all police officers who leave the service prior to attaining a full year of service. The Agency stated that it advised Complainant that he could request a waiver of repayment of the debt if he admitted the debt and offered an explanation as to why he believed that he should not be required to repay the debt.
The Agency further concluded that the stipulation set forth in provision 2c, pertaining to the promise to treat Complainant "the same as any other patient while on VA property," is void, because it did not provide any employment benefit and is "beyond the purview of the EEO arena". Alternatively, the Agency reasoned that the VA Police Officers were performing their normal duties when Complainant was closely observed while on VA property because of a concern that Complainant could pose a threat, as a disgruntled employee. To avoid giving the impression that the Police Officers were following or harassing the Complainant, the Police Chief issued an order directing the officers to avoid all contact with Complainant and not to engage Complainant in the future.
The Agency next found no violation of the Agreement with regard to the accessing of Complainant's records because it determined that the checks of the record occurred while Complainant was an employee and there had been no access to his records, after April 6, 2011, when the Agreement was signed. The Agency found no breach of confidentiality because it asserts that the Agreement did not contain any such provision.
The Agency acknowledged that the payment was not made by May 20, 2011, as stated in the Agreement, but the Agency found that it complied with the Agreement requiring the payment of $950.00. It states that the delay in payment was harmless and due to an oversight.
This appeal followed. On appeal, Complainant disagrees with the Agency's decision that it complied with the Agreement that provided for his resignation effective on February 25, 2011, for the reasons stated above and in Complainant's notification of breach.
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).
We find that that the pertinent provisions were knowingly and voluntarily entered by the parties and that the Agreement is valid.
Provision 2d - Lump Sum Payment
In the instant case, we find that the record shows that the Agency met its stated obligation with regard to the provision 2d for the payment of the lump sum. The record shows that the Agency paid the lump sum payment of $950.00, although the payment was seven days late. Under the circumstances of this case, we find that this brief delay in payment constituted substantial compliance with the terms of the agreement.
Provision 2b - Resignation
We find that the Agency breached the Agreement provision 2b that required that the Agency accept Complainant's resignation effective February 25, 2011. The failure to accept February 25, 2011, as the resignation date is evidenced by the record that documents that the Agency sought reimbursement for a debt that it generated on April 9, 2011, after the agreed upon resignation date.
Moreover, the Agency does not dispute that Complainant had gone through the clearance process on February 25, 2011 and told Complainant that he had been cleared of any outstanding debts as of February 25, 2011. Instead of complying with the agreement to accept the resignation effective February 25, 2011, and to ensure his records reflected that date, the Agency generated a new debt on April 9, 2011.
The Agency's finance unit may have automatically generated the debt action, but this does not absolve the Agency of its duty to abide by the terms of the agreement. We emphasize that the Agreement plainly states:
Both parties also stipulate and agree that this Agreement constitutes the entire understanding between the parties.
The settlement agreement binds the Agency, including its finance unit. We are also troubled that the Agency's reluctance to remedy this by waiving the debt. Instead, it put the onus on Complainant to admit the validity of a post-resignation debt and submit an additional explanation or payment. This was not required by the terms of the agreement. We agree with Complainant, therefore, that the Agency action of seeking repayment of this debt breached the plain language of the provision 2b that states the Agency agrees to effectuate his resignation effective February 25, 2011.
Provision 2c - Treat the Same as Any Other Patient
We further find that the Agency breached provision 2c (Complainant be treated the same as any other patient while on VA property). He is entitled to be accorded access to the facilities as is any other patient. The record shows that he was not accorded the same treatment given other patients. When he came to the VA Medical Center for medical services, on March 1, 2011, May 1, 2011 and May 3, 2011, he was monitored and followed by the Agency's Police. On one or more of those occasions, the Agency police detained and harassed him because they viewed him, not as a patient, but as a former employee. The Agency acknowledges that the police regarded Complainant as a potential threat, not as a patient.
In addition, on May 5, 2011, Complainant learned that his records had been accessed seven times by the Agency's Police Department; and he asserts that this was a breach of the Agreement's confidentiality provisions and his rights. Although the Agreement does not contain a specific confidentiality agreement, Complainant is protected against the Agency permitting unwarranted access to his employment or medical records.
The Agreement provisions also make clear that Complainant did not waive his rights or claims that may arise after the date the Agreement was signed and did not waive any benefits to which he is entitled.
Finally, although Complainant is no longer an employee, he is entitled to the protections of Title VII that protects employees, including former employees, and applicants, from retaliation.1 Ensuring compliance with the settlement agreement also remains within the purview of this Commission.
Where this Commission finds that a settlement agreement has been breached, pursuant to 29 C.F.R. � 1614.504(c), the only two remedies available are specific performance of the terms of the agreement or reinstatement of the underlying EEO complaint at the point processing ceased. Complainant requested that his original complaint be reinstated for further processing by the Merit Systems Protection Board. He is reminded that reinstatement of the subject EEO complaint would require that he return any benefits received pursuant to the settlement agreement, such as the lump sum payment; and reinstatement of the complaint would not provide him with the benefit of specific performance of the terms of the agreement. In this case, we find that specific performance of the settlement agreement is appropriate.
CONCLUSION
Accordingly, we AFFIRM, in part, and REVERSE, in part. We find that the Agency complied with the provision 2d and other provisions not referenced herein and order no further action with regard to those provisions. However, the Agency's decision finding no breach of provision 2b and 2c was improper and is hereby REVERSED. The matter is REMANDED to the Agency for compliance with the Order set forth below.
ORDER
The Agency is ORDERED to take the following actions:
1. Within thirty (30) calendar days from the date this decision becomes final, the Agency is ordered to provide proof of compliance with the provision that states that the Agency accepts Complainant's resignation effective February 25, 2011. (Provide a Form 50 to reflect the voluntary resignation).
2. Reimburse Complainant, with interest, for any and all payments that were taken by, or for, the Agency as a result of the claimed overpayment of $276.92, referenced in the Agency's April 23, 2011 notice of overpayment and absolve Complainant of any debts that the Agency claimed accrued on April 9, 2011, or after February 25, 2011. If any liens were taken against Complainant's wages or benefits, the Agency is ordered to release the liens and provide full restoration of his record.
3. The Agency is directed to abide by provision 2d and accord Complainant the treatment the same as it provides any other patient while on VA property.
4. The Agency is directed to accept for processing any new claims of breach, discrimination or retaliation that Complainant may bring with regard to Agency actions that occurred after April 6, 2011.
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 tends 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
December 7, 2012
__________________
Date
1 Subsequent acts of discrimination or retaliation should be processed as a separate complaint. Therefore, if Complainant wishes to pursue these matters through the EEO process, he is advised to contact an EEO Counselor.
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0120113963
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120113963