Felton M.,1 Complainant,v.Dr. David J. Shulkin, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Feb 6, 2018

0520180038 (E.E.O.C. Feb. 6, 2018)

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

Felton M.,1
Complainant,

v.

Dr. David J. Shulkin,
Secretary,
Department of Veterans Affairs,
Agency.

Request No. 0520180038

Appeal No. 0120171896

Agency No. 200H05522017101354

DECISION ON REQUEST FOR RECONSIDERATION

The Agency requested that the Equal Employment Opportunity Commission (EEOC or
Commission) reconsider its decision in EEOC Appeal No. 0120171896 (August 15, 2017).
EEOC Regulations provide that the Commission may, in its discretion, grant a request to
reconsider any previous Commission decision issued pursuant to 29 C.F.R. § 1614.405(a), where
the requesting party demonstrates 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. See 29 C.F.R. § 1614.405(c).

In his underlying case, Complainant alleged the Agency breached a settlement agreement into
which the parties entered. In our prior decision, the Commission found the settlement agreement
contained language in the preamble that could be construed as waiving future claims. Thus, the
Commission determined that language was unenforceable and severed that language from the
remaining portions of the Agreement.

Next, the Commission addressed Complainant’s breach claim. The Commission noted the
settlement agreement required two things: (1) the reassignment of Complainant away from the
supervision of the Chief of the Community Affairs Division; and (2) the reassignment to be

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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made effective on the same date that the settlement agreement was executed, which was on
February 17, 2017. The Commission found that the settlement agreement was signed on
February 17, 2017; however, the reassignment was not made effective until two days later. This
constituted the Commission’s first finding of non-compliance.

The Commission also noted that Complainant’s former supervisor exercised authority over
Complainant on February 17, 2017. This constituted the Commission’s second breach finding.

In its request for reconsideration, the Agency argues that the Commission erroneously found that
the language in the Agency’s introductory paragraph to be unenforceable. The Agency notes
that two other provisions in the settlement agreement state that Complainant only waives
complaints based on events occurring before the execution of the settlement agreement and that
Complainant is advised that he has not waived any rights or claims that may arise after the date
of the settlement agreement.

The Agency also claims that the Commission erroneously found that the Agency breached the
Agreement. The Agency notes the Commission correctly observed that the settlement agreement
was signed on February 17, 2017, and did not go into effect until February 19, 2017. However,
the Agency argues that 29 C.F.R. § 1614.504(b) provides that an Agency has 35 days from
receipt of Complainant’s allegation concerning breach to resolve the matter, or cure any breach.
Thus, the Agency argues that if it cures an alleged breach within 35 days of the filing of a breach
claim, it will be deemed to be in compliance. The Agency notes Complainant’s reassignment
went into effect on February 19, 2017, nearly two weeks before Complainant’s March 10, 2017
breach allegation. The Agency also argues that to the extent it may have technically breached
the settlement agreement, the Commission should have found it substantially complied with the
settlement agreement.

In response, Complainant states that he found the language in the settlement agreement’s
preamble could be interpreted to mean that he waived his right to future claims and thus, he
argues this language was unenforceable. In addition, Complainant notes that the Agency
admitted that they breached the settlement agreement by not ensuring the reassignment was
effective on February 17, 2017. Complainant also notes that the Agency did not make any
argument regarding the Commission’s second breach finding, that Complainant’s former
supervisor exercised authority over Complainant on February 17, 2017.

Upon review, we address the Agency’s contention that the Commission erroneously found that
the language in the Agency’s introductory paragraph unenforceable. While we recognize that
other provisions in the settlement agreement stated that Complainant was only waiving
complaints based on events occurring before the execution of the settlement agreement and not
waiving claims that may arise after the date of the settlement agreement, we find that the
language in the preamble could be constituted as waiving future, unknown claims. Thus, we find
this language was properly found to be unenforceable and severed from the remaining portions
of the settlement agreement.

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Next, we address the Agency’s argument that it substantially complied with the settlement
agreement. The settlement agreement required the Agency to make Complainant’s reassignment
effective the same date the agreement was executed, which was February 17, 2017. We note the
Agency does not deny Complainant’s reassignment was not made effective until February 19,
2017, two days after the date the settlement agreement was signed. The Commission rejects the
Agency’s argument that they are afforded 35 days to cure any type of breach claim and that since
they did, they should be found to have complied with the terms of an agreement. We find that
where there is a specific deadline in a settlement agreement, as is here, the Agency may be
required to meet such a deadline in order to be in compliance.

The Commission’s previous decision found that the Agency also breached the settlement
agreement when Complainant’s former supervisor exercised authority over Complainant on
February 17, 2017. We note the Agency does not challenge the Commission’s determination of
breach on this grounds.

After reviewing the previous decision and the entire record, the Commission finds that the
request fails to meet the criteria of 29 C.F.R. § 1614.405(c), and it is the decision of the
Commission to deny the request. The decision in EEOC Appeal No. 0120171896 remains the
Commission's decision. There is no further right of administrative appeal on the decision of the
Commission on this request. The Agency shall comply with the Order as set forth herein.

ORDER

Within 30 calendar days of the date this decision becomes final, the Agency is ordered to notify
Complainant of his option to either return to the status quo prior to the signing of the settlement
agreement or to obtain specific performance of the agreement. The Agency shall also notify
Complainant that he has 15 calendar days from the date of his receipt of the Agency’s notice
within which to notify the Agency either that he wishes to return to the status quo prior to the
signing of the agreement or that he wishes to allow the terms of the agreement to stand.
Complainant shall be notified that in order to return to the status quo ante, if he received any
monetary benefits, he must return any monetary benefits received pursuant to the agreement.
The Agency shall determine its obligations due to Complainant, or return of consideration or
benefits, if any, due from Complainant, within 30 calendar days of the date this decision
becomes final, and shall include such information in the notice to Complainant.

If Complainant elects specific performance, the Agency shall notify Complainant that the terms
of the settlement agreement shall stand and the Agency will abide by all of the terms of the
agreement, including the provision reassigning him to the position of Program Application
Specialist GS-031-11 within the Patient Business Service.

If Complainant elects to reinstate his EEO complaint, the Agency shall resume processing the
EEO complaint from the point processing ceased. The Agency is ordered to process the
remanded claims in accordance with 29 C.F.R. § 1614.108 et seq. The Agency shall
acknowledge to the Complainant that it has received the remanded claims within thirty (30)
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calendar days of the date of this decision. The Agency shall issue to Complainant a copy of the
investigative file and also shall notify Complainant of the appropriate rights within one hundred
fifty (150) calendar days of the date of this decision, unless the matter is otherwise resolved
prior to that time. If Complainant requests a final decision without a hearing, the Agency shall
issue a final decision within sixty (60) days of receipt of Complainant's request.

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. A copy of the
Agency's letter of acknowledgment to Complainant and a copy of the notice that transmits the
investigative file and notice of rights must be sent to the Compliance Officer as referenced
below.

IMPLEMENTATION OF THE COMMISSION’S DECISION (K0617)
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 in the digital format required by the Commission, and submitted via
the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). 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.
COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (R0610)
This is a decision requiring the Agency to continue its administrative processing of your
complaint. However, if you wish to file a civil action, you have the right to file such action in an
appropriate United States District Court within ninety (90) calendar days from the date that you
receive this decision. 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 filed your
appeal with the Commission. 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. Filing a civil action will terminate the
administrative processing of your complaint.
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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. signature
Carlton M. Hadden, Director
Office of Federal Operations

February 6, 2018
Date