0120161079
05-06-2016
Donte L.,1 Complainant, v. Robert McDonald, Secretary, Department of Veterans Affairs, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Donte L.,1
Complainant,
v.
Robert McDonald,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120161079
Agency No. 200I05732009101045
DECISION
Complainant filed a timely appeal with this Commission from the Agency's December 14, 2015 final decision (FAD), 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 compliance action, Complainant was a former security guard, who had been employed at the Agency's North Florida / South Georgia Veterans Health System facility in Lake City, Florida.
On November 5, 2010, Complainant and the Agency entered into a settlement agreement to resolve an EEO matter. The settlement agreement provided, in pertinent part, that:
1. In exchange for consideration identified herein, Complainant hereby waives any and all actions, claims, complaints, EEO complaints, MSPB appeals, ...against VA, its past and present officers and employees, in their personal as well as their official capacities, . . . based on any action taken as of the date of Complainant's execution of this Agreement and waives his right to pursue future causes of action against the Agency based on facts in existence as of the date of Complainant's execution of this Agreement, with the exception of any claims that may arise by reason of breach of any term of this Agreement.
. . .
4(a). Place Complainant in a leave status (administrative) under the effective date of his retirement on November 30, 2010.
. . .
4(e). In consideration for the withdrawal identified above, the Agency agrees to the following terms and conditions:
To forward all inquiries of references to the Chief of Human Resources who will provide a neutral reference and neutral credential report to inquiries from prospective employers. The information provided to employment references will be as follows:
* Present and past positions, titles and occupational series;
* Present and past grades
* Present and past annual salary rates (including performance awards or bonuses, incentive awards, merit pay amount, Meritorious or Distinguished Executive Ranks and allowances and differentials;
* Present and past duty stations;
* Position descriptions; and
* Present and past annual salary rates.
. . .
5(d). Complainant agrees he will not apply for employment in the Department of Veterans Affairs.
. . .
8(b). This Agreement constitutes the entire understanding between the parties, and there are no other terms or commitments, oral or written.
. . .
9. This Agreement shall not impede the Agency's ability to abide by all federal laws, rules and regulations.
Following the settlement agreement, Complainant was hired as a contract security officer by a private-sector employer who had a contract with the Agency at the Malcom Randall Veterans Administration Medical Center (VAMC). Complainant was observed sleeping on the job at the new employer's location. A VA employee informed the new employer. The VA employee does not dispute that he contacted the contractor and provided information regarding his observations. The new employer terminated Complainant's employment.
On October 7, 2015 and also by letter to the Agency dated October 19, 2015, Complainant alleged that the Agency breached Provision 4(e). Specifically, Complainant alleged that an agent of the Agency provided Complainant's new private sector employer inaccurate information about his employment and threatened to terminate all of the VA contracts with the private sector employer if the contractor did not terminate Complainant's employment.
The Agency concluded that there was no breach of the Agreement. The Agency reasoned that the Agency is responsible for reporting work-related issues to contractors and such communications were not a "reference for employment as envisaged in the November 5, 2015 (sic) Agreement." The Agency stated that "the alleged inappropriate communication [by the named agent] with a VA contractor regarded the current work performance of [Complainant] as a contract security officer at the Malcom Randall VAMC." The Agency found that Complainant provided no evidence that any VA employee inappropriately discussed the particular circumstances of his departure from VA employment and further found that it had not received any reference for employment and, therefore, that the "November 5, 2015 settlement agreement has not been breached."
This appeal followed.
On appeal, Complainant reasserts his claim that the Agency breached the Agreement when its agent contacted his new employer and caused him to be terminated.
The Agency responds that the appeal should be dismissed for untimely notification of the breach and asserts that the "Agency did not demand that Appellant's employers terminate his employment, but, rather, remove him from the VA security contract as he posed an obvious security risk while sleeping on the job." The Agency also maintains that "it is obvious that the parties did not envision the settlement agreement controlling future misconduct by the Appellant."
ANALYSIS
Initially, we note that the date of the subject agreement was November 5, 2010, not the 2015 date referenced in the Agency's decision.
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 the Agreement is valid and binding on both parties. We disagree that the appeal was untimely filed.
In the instant case, the Agreement required the Agency to provide a neutral reference to inquiries from prospective employers and forward all inquiries of references to the Chief of Human Resources who would provide the neutral credential report. There is no evidence the Agency received any inquiry from any prospective employer. Consequently, we find that the situation at issue is not addressed by the terms of the settlement agreement. Here, an agent for the Agency reported information, post-hire, to Complainant's new employer based on his observations. According to the statement contained in the Agency's brief, the Agency acknowledged that it wanted Complainant removed and asked that "the employer remove him from the VA security contract," ostensibly because of the Agency's determination that Complainant posed an obvious security risk while sleeping on the job.
Further, the Agreement acknowledged that Complainant voluntarily retired from employment with the VA and that Complainant agreed not to seek future employment with the VA. We find that the Agency did not breach the Agreement when it sought to remove him from working at the VA facilities, including for contractors.
To the extent that VA is trying to prevent Complainant's employment at all private sector non-VA establishments, however, that goes beyond the parties' agreement and could raise issues of possible retaliation against Complainant. The Agency may be liable if it permits any employee or agent to interfere with Complainant's future employment outside of the Agency. Complainant's waiver did not extend to actions taken after the date of the Agreement.
For the reasons set forth herein, however, we do not find that the Agency breached the terms of the November 5, 2010 Agreement.
CONCLUSION
Accordingly, we AFFIRM the Agency's Final Decision finding no breach.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)
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 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. The requests 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. � 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 (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
May 6, 2016
__________________
Date
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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