0120081201
05-01-2008
Gwendolyn Calloway, Complainant, v. Dr. James B. Peake, Secretary, Department of Veterans Affairs, Agency.
Gwendolyn Calloway,
Complainant,
v.
Dr. James B. Peake,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120081201
Agency No. 200305492005103473
DECISION
JURISDICTION
Complainant, a Registered Respiratory Therapist, filed a timely appeal
with this Commission from a final decision (FAD) by the agency dated
December 6, 2007, finding that it was in compliance with the terms of the
July 27, 2006 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 agrees that the complainant may but is not required to
seek a transfer or other employment in any other service within the agency
and that the agency will assist in facilitating any transfer or employment
she may seek. The parties understand and agree that the burden is upon
complainant to find such transfer or other employment that is acceptable
to the receiving service or Agency employer. The agency's burden under
this paragraph is limited to assisting complainant in receiving available
in-service training at Veterans Affairs North Texas Health Care system
and a recommendation that supports such transfer or employment.
(2) Complainant agrees and understands that she currently works in
a position that may, from time-to-time, require her to work holidays.
She further agrees that she will not, for a period of one year from the
date she signs this agreement, call in for emergency sick leave
on a day she is scheduled to work a holiday unless she thereafter,
as soon as practically possible, provides adequate documentation of
the reason for such leave. The phrase "emergency sick leave" as used
herein shall mean any leave involving a sickness, but will not include
sick leave for scheduled appointments or for any matter that could have
been anticipated before the scheduled work tour. Nothing herein shall
be construed as prohibiting complainant from arranging to have another
employee, acceptable to the agency, to work her holidays.
(3) The parties agree that complainant's obligation to work holidays
shall be "fair and equitable", as set forth in Article 20, Section 3,
of the Master Agreement between the Department of Veterans Affairs and
the American Federation of Government Employees (1997).
By letters to the agency dated October 2, 2007, and October 15, 2007,
complainant alleged that the agency was in breach of the settlement
agreement, and requested that the agency specifically implement its terms.
Specifically, complainant alleged that the agency failed to remove her
from under the immediate supervision of the Assistant Chief of Respiratory
Therapy (ACRT) and provide her with a "Monday - Friday schedule, no
weekends, or holiday position." She further contended that there have
been four (4) job openings in Respiratory Therapy since the execution of
the settlement agreement, for which she applied and was found qualified,
but was not selected. Complainant asserted that there is no way that
she can ever advance in her department unless the agency "facilitates"
this action. Complainant also stated that she has applied for "at least
6 positions" since the execution of the settlement agreement, and yet
she is still "in the same situation with the same supervisor." Lastly,
complainant averred that she did not believe that she would have to rely
upon the settlement agreement to obtain a position in Respiratory Care,
and the department is not in compliance with the resolution that was
agreed upon.
In its December 6, 2007 FAD, the agency concluded that management
intended for complainant to secure other employment that is acceptable
to the receiving service or agency, and management would provide a
recommendation in support of such a transfer or employment. Contrary to
complainant's contentions, there is no language to indicate that she would
be "removed" from under the supervision of the ACRT. The agency stated
that complainant was advised that it was her responsibility to seek a
transfer or other employment, as indicated in the plain language of the
settlement agreement. The agency asserted that its burden is limited
to providing what is essentially an innocuous reference, and to assist
complainant in receiving available in-service training at the facility.
However, the agency further asserted, neither of these obligations
ensured that complainant would be selected for any vacancy, and thus far,
she apparently has not been. In contrast to complainant's assertions
that in conjunction with being removed from under the supervision of
the ACRT, she was to receive a Monday-Friday schedule, no weekends, or
holiday position, the settlement agreement plainly states the opposite.
The agency maintained that the settlement provisions had reminded
complainant that she currently works in a position which may from time to
time require her to work holidays, and her obligation to work holidays
would be fair and equitable, as set forth in the American Federation
of Government Employees (AFGE) Master Agreement. The agency further
maintained that the settlement agreement is silent regarding the days or
hours that would comprise complainant's work schedule; hence there is no
promise to limit her tour of duty to a Monday through Friday schedule.
The agency concluded that based on complainant's breach claims, it
appears that she misconstrued the terms and conditions that constitute
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).
In the instant case, the Commission finds the agency's actions in this
matter to be consistent with the language of the settlement agreement. The
Commission is not swayed by complainant's arguments purporting a violation
of the settlement agreement. Record evidence in this case simply does
not support complainant's contentions. Accordingly, the agency's final
decision finding no settlement breach is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0408)
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 19848,
Washington, D.C. 20036. 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 (Z0408)
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 that the Court
appoint an attorney to represent you and that the Court 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 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 1, 2008
__________________
Date
2
0120081021
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
5
0120081201