0120090957
05-28-2009
Giani Sarah Valentino,1 Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Giani Sarah Valentino,1
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120090957
Agency No. 200H-0518-2008102035
DECISION
Complainant filed a timely appeal with this Commission from a final
decision (FAD) by the agency dated December 19, 2008, finding that
it was in compliance with the terms of the April 30, 2008 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.
The settlement agreement provided, in pertinent part, that:
(1) [the agency will] arrange within two weeks of [the] date of
this settlement, a facilitated meeting to include the complainant, her
supervisor and nurse manager on her unit in [the] Community Stabilization
Program (CSP) for the purpose of establishing a more cohesive method
of communicating with one another regarding work assignments, process
and schedules. The facilitated meeting will also determine a series of
regularly scheduled...meetings....;
(2) [the agency will] approve the use of 1.5 hours of comp[satory]
time for work completed on February 22, 2008;
(3) [the agency will]...offer reassignment to the complainant to
another social work position within the next thirty six months in the
event such position is available and acceptable to both the complainant
and the agency....;
(4) [the agency will provide] a clear and written process identifying
who the complainant will contact if the supervisor is unavailable or is
off campus will be provided to the complainant;
(5) the Chief of the Social Work Service or a designee will respond in
a respectful & timely manner to the complainant's questions, inquiries,
or concerns relating to the complainant's social work position or any
issue related to her employment that is specific to social work, after
the complainant has first attempted to get a response from her supervisor
but still has concerns or disagreements regarding the issue; and
(6) [the agency will provide complainant] a clear written process
identifying supervisory coverage when and if the supervisor is on any
type of leave....
By email to the agency dated September 29, 2008, complainant alleged that
the agency breached the settlement agreement. Specifically, complainant
alleged that the agency revoked the approval of 57.5 hours of annual
leave previously approved for the period of October 14, 2008, to November
14, 2008. She later explained that the approval of this leave was on
the agenda for the meeting scheduled in May 2008 under term 1, and that
she would not have cancelled the meeting if she knew the approval would
later be revoked. Complainant alleged that she never received information
in writing on who to contact when her supervisor was unavailable.2
In response to complainant's claim of breach, the Chief of the Social
Work Service (Chief) stated that the meeting agreed to in term 1 was
cancelled by complainant as being unnecessary because prior thereto
she accepted being reassigned out of CSP. He wrote that while
complainant's former supervisor in CSP approved leave for complainant,
the situation changed when she moved to a new program. The Chief
stated 1.5 hours of compensatory time was approved for complainant.
On supervisory coverage the Chief stated that complainant's new
supervisor is available by cellular phone, and that he provides back up.
He stated that the supervisory arrangement was verbally conveyed when
complainant was reassigned, and the lines of authority are clearly
delineated in complainant's position description. A review of the
social worker position description reveals that it states the incumbent
is professionally and administratively responsible to the Chief of the
Social Work Service, or his designee, and receives clinical duties as
delegated by the Chief of Mental Health Service line in collaboration
with the Chief of the Social Work Service. For term 5 the Chief stated
he was working closely with complainant's supervisor in responding to
complainant's questions and concerns. He gave sample email strings
showing his involvement in addressing complainant's work issues with
complainant and her supervisor.
The December 19, 2008, FAD concluded that the agency did not breach the
settlement agreement. It found that complainant cancelled the meeting
agreed to in term 1, that her position description contained information
on who had supervisory controls, and that the Chief submitted emails
showing he interacted with complainant on various work matters.
On appeal, complainant reiterates her contention on the meeting.
She argues that the agency breached terms 4 and 6 of the settlement
agreement, and the information in her position description does not
satisfy these terms. She argues that the agency breached term 5,
asserting that the Chief has not always responded in a timely and
respectful matter, as agreed. She provides examples. In opposition
to the appeal, the agency argues that it complied with the settlement
agreement.
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. Department of Defense,
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. Department 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. United States Postal
Service, 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).
Complainant has not proven, by a preponderance of the evidence, that
the agency breached the settlement agreement. She argues, in essence,
that she cancelled the meeting agreed to in term 1 because she was misled
into believing her leave issue was resolved, but approval of the leave
was later revoked. This is an argument of bad faith. Good faith is
an implicit term in any settlement agreement. Complainant has not
established bad faith. As the Chief explained, the situation (and
supervisors) changed after complainant was reassigned to a new program.
Complainant does not rebut the Chief's claim that he approved the 1.5
hours of compensatory time. We find that the agency has complied
with terms 4 and 6 of the settlement agreement. As argued by the
agency, the position description explains who has supervisory controls.
It requires little interpretation of the position description to realize
the Chief is the back up supervisor, and this was verbally confirmed
by the Chief to complainant. Finally, complainant disputes that the
Chief responded in a respectful and timely manner as agreed to in term 5.
After reviewing the entire record, including submissions by complainant,
we find that the Chief satisfied this term. While complainant did not in
many instances get matters resolved in her favor, she has not shown that
the Chief did not respond in a respectful and timely manner, as agreed.
The FAD is affirmed.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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), 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 (S0408)
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 (Z1008)
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
May 28, 2009
__________________
Date
1 The complainant was formerly known as Sarah Frederick.
2 Complainant also suggested that her reassignment under the settlement
agreement from CSP to the Integrated Primary Care Behavioral Health (PCBH)
Program, a new program with a different supervisor, did not satisfy term
3 of the settlement agreement. The reassignment was on June 8, 2008.
On appeal, complainant concedes term 3 was met.
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0120090957
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120090957