Fidela B., Complainant,v.Robert McDonald, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Feb 25, 2016

0120141311 (E.E.O.C. Feb. 25, 2016)

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

Fidela B.,
Complainant,

v.

Robert McDonald,
Secretary,
Department of Veterans Affairs,
Agency.

Appeal No. 0120141311

Agency No. 200J-0537-2013103267

DECISION

Complainant appeals from the Agency’s determination that it did not breach a settlement
agreement that the parties entered into resolving Complainant’s complaint. For the following
reasons, we VACATE the Agency’s determination.

BACKGROUND

The record indicates that the parties entered into a settlement agreement in August, 2013,
resolving the complaint. The settlement agreement provided, in pertinent part, that:

2. a. [Complainant’s supervisor] will meet with [Complainant] one-on-one, once a
month effective August 1, 2013, thru February 3, 2014, to discuss any issues or concerns
they may both have.

b. If [Complainant] does not demonstrate any inappropriate behavior, i.e., following
instructions and adhering to the standard of Behavior Policies of Jesse Brown Medical
Center, between August 1, 2013, thru February 3, 2014, the admonishment will be taken
out of her OPF file.

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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c. By August 1, 2013, [Complainant] will provide an addendum to the Letter of
Inquiry dated July 13, 2013.

On September 11, 2013, Complainant alleged that the Agency breached the settlement
agreement. Specifically, Complainant indicated that her supervisor did not meet with her in
August, 2013, under item 2.a. On January 24, 2014, the Agency determined that it did not
breach the settlement agreement. Complainant filed the instant appeal from that Agency
determination.

ANALYSIS AND FINDINGS

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).

Initially, we note that the parties do not dispute whether there was any noncompliance with items
2.b. or 2.c. under the settlement agreement. In response to Complainant’s breach claim of item
2.a., the supervisor indicated that she did not meet with Complainant in August, 2013, because
she had a two-week scheduled vacation, and was off for a couple of other days that month. The
supervisor stated that during the relevant time period, she talked with Complainant about her
being unable to meet with her in August, 2013, due to the foregoing reasons and Complainant
was okay with that. Complainant disputed the foregoing statements and claimed that the
supervisor made no effort to meet with her and she did not tell the supervisor that she was okay
with not having a meeting in August, 2013.

The supervisor also indicated that on September 23, 2013, she asked Complainant to meet with
her under the settlement agreement. Complainant however told the supervisor that she had to
talk with her union representative first. The supervisor stated that Complainant did not get back
to her about the meeting; rather her union representative emailed her indicating that the meeting
was not necessary because the Agency had breached the agreement.

Based on the foregoing, since the Agency has yet to fully comply with item 2.a. due to the
supervisor’s schedule conflict in August, 2013, and Complainant’s refusal to meet in September,

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2013, we find that considering the circumstances, the Agency should make another attempt to
have seven monthly meetings with Complainant in accordance with the settlement agreement.

We note that to the extent that Complainant is claiming that subsequent acts of discrimination,
i.e., her being subjected to a meeting for a reprimand on September 11, 2013, violated the
settlement agreement, she is advised, if she has not already done so, to contact an EEO
Counselor pursuant to 29 C.F.R. § 1614.105 so that her claim of discrimination may be
processed as a separate complaint of discrimination pursuant to § 1614.106. See 29 C.F.R.
§ 1614.504(c).

CONCLUSION

Accordingly, the Agency’s decision finding no settlement breach is VACATED and the matter is
REMANDED to the Agency for its compliance of item 2.a. under the settlement agreement in
accordance with the Order set forth herein.

ORDER

Within 30 days of the date this decision becomes final, the Agency shall arrange to have
Complainant meet with her supervisor in accordance with item 2.a. under the August, 2013
settlement agreement. The first meeting shall take place within 30 days of the date this decision
becomes final. The supervisor shall meet with Complainant, one-on-one, once a month for the
next seven months to discuss any issues or concerns they may both have.

Evidence showing that the first meeting has been scheduled must be sent to the Compliance
Officer as referenced herein.

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

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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 (M0815)

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, 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 (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,

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facility or department in which you work. 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 25, 2016
Date