0120161602
06-23-2016
Horacio Z.,1 Complainant, v. Robert McDonald, Secretary, Department of Veterans Affairs, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Horacio Z.,1
Complainant,
v.
Robert McDonald,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120161602
Agency Nos. 200105162014100666; 20010675201402494;
200105732014104603; 200307022013100852
DECISION
Complainant filed a timely appeal with this Commission from a final decision (FAD) by the Agency dated March 6, 2016, finding that it was in compliance with 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 compliance action, Complainant worked as a Medical Support Assistant at the Agency's VAMC Orlando Florida and North Florida / South Georgia Veterans Health System facility in Orlando, Florida.
On July 15, 2015, Complainant and the Agency entered into a settlement agreement to resolve the above-referenced EEO matters. The settlement agreement provided, in pertinent part, that:
(2a) The Agency agrees to give a one-time priority consideration for any term or full time position with the Orlando VA Medical Center, peer support specialist up to GS-5, which becomes available, for which he is fully qualified, and for which the primary duty location is within the Orlando VA Medical Center. The one-time priority consideration shall expire two years after the effective date of this Agreement if not redeemed prior to that date;
(2b) The Agency agrees to give a one-time priority consideration for any term or full time position with the NG/SF VA Healthcare Systems, peer support specialist up to GS-9, which becomes available, for which he is fully qualified, and for which the primary duty location is within the NG/SF Healthcare Systems;
(3a) Human Resources in the Orlando VA Medical Center and NG/SF Healthcare Systems will notify Complainant in writing of any potential vacancies for the Peer Support Specialist position in order for Complainant to notify [them] whether he is interested in the position or not.
(3b) The parties agree that once Complainant has notified the Agency of his interest for an open position for which he is qualified in the manner prescribed, he will have immediately redeemed the priority consideration allotted to him for that individual VA location;
(3f) "The Agency also cannot violate the Master Agreement between the Department of Veterans Affairs and the American Federation of Government Employees (union) to give the first area of consideration to Orlando VAMC or NG/SF VA Healthcare System employees;"
(3g) The selecting official is free to select the Complainant for the position or request a list of other candidates if Complainant is not offered the position. Priority consideration does not guarantee the Complainant will be selected for any position; and
(3n) The parties' agreement to these terms renders the terms binding and enforceable. If any part of this Agreement is found to be illegal or unenforceable, the remaining part of the Agreement shall remain in effect.
On September 5, 2015, the Agency notified Complainant of a peer support position with the NF/SG VHS. Complainant applied. The Agency issued a non-competitive certificate for Complainant's application, which was submitted to the selecting official for priority consideration. On September 28, 2015, the selecting official returned the certificate, with no selection. The Agency notified Complainant of his non-selection.
By letter to the Agency dated October 15, 2015, 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 select him for the Peer Support Specialist GS-06 to GS-09 position. Complainant also alleged that the Agency's refusal to select him was an act of retaliation.
On January 5, 2016, Complainant alleged a second breach of the Settlement Agreement. He alleged that the Agency failed to provide him with priority consideration for a position that the Agency advertised on USAJOBS on December 30, 2015, without any notification to Complainant from the Chief Human Resources Office.
On March 1, 2016, the Agency's Human Resources staff contacted Complainant via email to ask Complainant whether he wanted to exercise priority consideration for the Peer Support Specialist position GS-05, located in the Orlando VA Medical Center. Complainant declined to exercise that priority consideration option.
The Agency's Decision addressed both breach claims in its decision. The Agency found that it fulfilled its obligations under the terms of the Agreement. The Agency also reasoned that Complainant was raising additional incidents, which required that Complainant file a new EEO complaint, because the claims were unrelated to the breach issue and not within the scope of the terms of the Agreement.
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).
We note that the Agreement requires that the Agency provide priority consideration, but paragraph 3f states that the Agency cannot violate the union agreements "to give the first area of consideration to Orlando VAMC or NG/SF VA Healthcare System employees." This appears to be contradictory. Although we are troubled by this contradiction, we find that there was a knowing and voluntary exchange of consideration and we further find that the Agreement was valid and binding on both parties.
In the instant case, the Agreement required the Agency to provide a one-time priority consideration for two identified positions. The record shows that the Agency provided the priority consideration. In addition, the Agreement specifically stated that there was no guarantee that Complainant would be selected. Although Complainant challenges the reasons for the non-selection, the Agency's decision not to select him did not constitute a breach. For these reasons, we find that Complainant failed to show that the Agency breached the Agreement.
To the extent that Complainant is alleging additional discrimination or retaliation claims that arose after the execution of the Agreement, Complainant is advised that he should initiate contact with an EEO Counselor if he wishes to pursue those claims.
CONCLUSION
Accordingly, we AFFIRM the Agency's Final Determination.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)
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. The requests 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 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 (S0610)
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 (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
June 23, 2016
__________________
Date
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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