Harvey D.,1 Complainant,v.Dr. David J. Shulkin, Secretary, Department of Veterans Affairs, Agency.Download PDFEqual Employment Opportunity CommissionMar 7, 20180120172372 (E.E.O.C. Mar. 7, 2018) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Harvey D.,1 Complainant, v. Dr. David J. Shulkin, Secretary, Department of Veterans Affairs, Agency. Appeal No. 0120172372 Agency No. 200P-0691-20131012219 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from a final decision (FAD) by the Agency dated June 2, 2017, finding that it had breached 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 complaint, Complainant worked as a Police Officer at the Agency’s Greater Los Angeles Health Care System in Los Angeles, California. On June 4, 2013, Complainant filed a formal EEO complaint wherein he claimed that he had been discriminated against on the bases of his disability and in reprisal for his prior EEO activity. On April 22, 2015, Complainant and the Agency entered into a settlement agreement. The settlement agreement provided, in pertinent part: (1) That for the next two years, [the Agency] will provide Complainant with priority consideration for the next position that he applies for, and requests priority consideration, and, is found to be qualified for, and is on the Best Qualified List. For purposes of this agreement, priority consideration means that only Complainant’s application will be forwarded to [Chief 1] for decision as to whether or not he will be hired under “priority consideration.” 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. 0120172372 2 (2) If not selected under priority consideration by [Chief 1], Complainant will be given a written explanation by [Chief 1]. (3) If not selected under priority consideration, Complainant’s name will be forwarded along with others on the Best Qualified list to the selecting official and Complainant will be considered for the job, along with the other qualified applicants by whomever is the decision maker. (4) To pay attorney fees to [Complainant’s attorney], not to exceed $25,000. By e-mail to the Agency dated April 25, 2017, Complainant indicated that the Agency was in breach of the settlement agreement. Specifically, Complainant alleged that the Agency “failed to post any position for which he could have been qualified in order to utilize” the settlement agreement. Complainant stated that when the settlement agreement was executed, he intended to pursue a Lieutenant GS-8 position for which he was qualified, but the position was rescinded. In its June 2, 2017 final decision, the Agency determined that it failed to provide sufficient evidence of compliance with the settlement agreement, and therefore it could only surmise that the agreement was breached. The Agency noted that according to the plain language of the agreement, Complainant was to be provided priority consideration by a specifically named Chief (Chief 1), and if he was not selected, be issued a written explanation regarding the reasons for the nonselection by Chief 1. According to the Agency, Chief 1 is no longer employed by the same facility, cannot make employment decisions for that facility, and it appears that he is unaware of the obligations he incurred as a result of the terms of the settlement agreement. The Agency stated that Chief 1 asserted he was unaware if Complainant applied for any positions that he was eligible for in the past two years as none were brought to his attention. The official who succeeded him (Chief 2) identified several positions within the Police and Emergency Management Service that were advertised, ranging in grade levels from GS-8 through GS-13. The Agency noted that Chief 2 stated Complainant did not make the certification for any of the job announcements, and he believed Complainant only applied for a GS-9 Lieutenant position. The Agency acknowledged that no further information was provided by the facility such as the Police Officer vacancies that were announced, a definitive identification of the positions that Complainant applied for, or any information concerning the disposition of the applications. The Agency stated that a mutual mistake may have occurred during the formation of the agreement through the designation of a specific management official as the party responsible for providing priority consideration, given that this individual did not remain employed by the facility for the duration of the agreement. As a remedy, the Agency reasoned that reformation of the pertinent provisions was viable and equitable given that it intended to provide priority consideration, and the potential mistake was not the result of bad faith or fraud during the negotiations. 0120172372 3 The Agency offered Complainant a choice of reinstatement of his complaint or reformation of the relevant provisions. The Agency stated that because Chief 1 is no longer employed at Complainant’s facility, these provisions must not identify him as the management official responsible for providing priority consideration, and the terms should be revised to reflect that the Chief of Police and Emergency Management Service or his/her successor is obligated to do so. The Agency noted that the expiration date of the settlement agreement must be extended until such time that the terms and conditions of the reformed provisions are satisfied. The Agency also informed Complainant that he would be required to return the award of $25,000 in attorney’s fees if the complaint is reinstated. CONTENTIONS ON APPEAL On appeal, Complainant states that he is not appealing the fact that a breach occurred. Complainant challenges the conditions under which the breach was determined and the options that were offered as remedies. Complainant argues that a mutual mistake did not occur but rather the Agency counsel and EEO Mediator bear full responsibility for the mistakes in the agreement. Complainant criticizes the remedy options offered by the Agency. According to Complainant, he has two current EEO complaints against Chief 2. Complainant questions how he would have a reasonable unbiased priority consideration for a position in light of these complaints. Complainant also presents his proposals for a proper remedy. In response, the Agency asserts that Complainant has failed to select either remedy that it offered in its final decision. The Agency states that it has complied with the settlement breach decision in Complainant’s favor and that its final decision should be affirmed. ANALYSIS 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). 0120172372 4 Under the general principles of contract law, a party may avoid an otherwise valid contract because of a mistake. One who attacks a settlement agreement bears the burden of showing fraud or mutual mistake. See Asberry v. United States Postal Service, 692 F. 1378, 1380 (Fed Cir. 1982). The party attempting to avoid the contract must prove that: (1) the mistake related to a basic assumption upon which the contract was made; (2) the mistake had a material effect upon the agreement, and (3) the mistaken parties did not assume or legally bear the risk as to the mistaken fact. Restatement (Second) of Contracts 152, see also Skyline Corp. v. National Labor Relations Board, 613 F.2d 1328 (5th Cir. 1980). It is evident that the parties committed a mistake in the formation of the settlement agreement when they designated a specific individual, Chief 1, to address whether Complainant should be hired under priority consideration. The parties did not contemplate that Chief 1 might leave that position. A more appropriate approach would have been to state the individual in that specific Chief position or his/her successor would be the designated party. We agree that provision one and two of the agreement are null and void, rendering those provisions unenforceable due to mutual mistake of a material fact. The parties could attempt to reform the contract. We observe that both parties acknowledge the agreement was breached. The other remedy available is reinstatement of the complaint. We note though that Complainant received the attorney’s fees that were promised in the agreement and therefore this benefit must be returned if Complainant wishes to reinstate the complaint for further processing. In light of the fact that the Agency determined that it breached the settlement agreement and presented these remedy options to Complainant, we AFFIRM the Agency’s final decision. CONCLUSION The Agency’s determination that a breach occurred is AFFIRMED. This matter is REMANDED to the Agency for further processing in accordance with the ORDER below. ORDER The Agency is ORDERED to notify Complainant of his option to return to the status quo prior to the signing of the settlement agreement or to proceed with a reformation of the settlement agreement in accordance with the terms set forth by the Agency in its final decision. The Agency shall so notify Complainant within thirty (30) calendar days of the date this decision is issued. The Agency shall also notify Complainant that he has fifteen (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 proceed with a reformation of the settlement agreement in accordance with the terms set forth by the Agency in its final decision. Complainant shall be notified that in order to return to the status quo ante, he must return any monies or benefits received pursuant to the agreement. 0120172372 5 The Agency shall determine any payment due Complainant, or return of consideration or benefits due from Complainant, within thirty (30) calendar days of the date this decision is issued, and shall include such information in the notice to Complainant. If Complainant elects to return to the status quo ante and he returns any monies or benefits owing to the Agency as specified above, the Agency shall resume processing Complainant’s complaint from the point processing ceased pursuant to 29 C.F.R. § 1614.108 et seq. If Complainant elects not to return to the status quo ante, i.e., not to return any consideration owing the Agency, the Agency shall notify Complainant that the terms of the settlement agreement shall be reformed in accordance with the terms set forth by the Agency in its final decision. If Complainant fails to make an election, the Agency shall reform the settlement agreement to solely include the provision regarding attorney’s fees, which has already been awarded. A copy of the Agency’s notice to Complainant regarding his options, including the determination of consideration due or owing, as well as a copy of either the correspondence reinstating the complaint for processing or the correspondence notifying Complainant that the terms of the settlement agreement have been reformed, 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. 0120172372 6 STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0617) 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. A party shall have twenty (20) calendar days of receipt of another party’s timely request for reconsideration in which to submit a brief or statement in opposition. 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. Complainant’s request 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 agency’s request must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). 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. 0120172372 7 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. 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 March 7, 2018 Date Copy with citationCopy as parenthetical citation