0120181723
07-10-2018
Jacqueline B. Complainant, v. Peter O'Rourke, Acting Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Jacqueline B.
Complainant,
v.
Peter O'Rourke,
Acting Secretary,
Department of Veterans Affairs
(Veterans Health Administration),
Agency.
Appeal No. 0120181723
Agency No. 200I-0516-2015103215
DECISION
Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from a final decision by the Agency dated April 3, 2018, finding that it was in compliance with the terms of a June 18, 2015 settlement agreement. See 29 C.F.R. � 1614.402; 29 C.F.R. � 1614.504(b); and 29 C.F.R. � 1614.405.
BACKGROUND
During the period at issue, Complainant worked as a Primary Care Physician, GS-15 at the Agency's C.W. Bill Young Medical Center in Bay Pines, Florida. Believing that the Agency subjected her to unlawful discrimination, Complainant contacted an Agency EEO Counselor to initiate the EEO complaint process.
On June 18, 2015, Complainant and the Agency entered into a settlement agreement to resolve the matter. The June 18, 2015 settlement agreement provided, in pertinent part, the following provisions:
2.1 [Complainant's] 2014 Proficiency Report, VA Form 10-2623a, will be amended from Low Satisfactory to Satisfactory rating in Item 16, Category 4, Administrative Competence, within 30 days of the final signature on this agreement. The overall rating from Section C will remain Satisfactory. Comments in Section D., Personal Qualities, will be removed.
The settlement agreement also obligated Complainant's as follows:
3.3 Accept the amendment to the 2014 Proficiency Report from Low Satisfactory to Satisfactory rating.
According to her letter dated April 26, 2018, Complainant stated that she had filed a breach allegation with the Agency on February 2, 2018.1 Complainant alleged that the Agency failed to amend her performance evaluation to remove negative comments.
In its final decision dated April 3, 2018, the Agency found no breach. The Agency stated that its EEO Manager had obtained a settlement compliance report dated July 30, 2015, showing the Agency was in compliance with provision 2.1. According to the Agency, the EEO Manager confirmed that Complainant's 2014 Proficiency Report had been changed from Low Satisfactory to Satisfactory and that the comments in the personal qualities section had been removed.
On appeal, Complainant provided a memorandum that described a meeting with a managing doctor on September 29, 2017, regarding addendum comments in her Ongoing Professional Practice Evaluations (OPPE) period from May 1, 2014 to March 31, 2015. Complainant also argues that the Agency was obligated to remove negative evaluation comments about her patients who had requested reassignments to other Agency doctors in 2016. Complainant further requested that the Agency upgrade her performance pay award from 6.8 percent to 6.9 percent. In support of her position, Complainant contended that the system that the Agency had used to calculate the patient reassignment requests was "not working properly for 2017."
FINDINGS AND 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 (Dec. 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 (Aug. 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 (Dec. 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, we find that, based on the provisions excerpted above, the settlement agreement was expressly limited to the issue of Complainant's 2014 Proficiency Report. The Agency determined that it had upgraded Complainant's 2014 Proficiency Report to satisfactory and removed the comments in the report's personal qualities section. Complainant has failed to offer proof to the contrary. See Swirczynski v. U.S. Postal Serv., EEOC Appeal No. 01912778 (Sep. 17, 1991) (wherein a complainant failed to meet her threshold burden to offer some support of her breach allegation).
EEOC carefully reviewed Complainant's appellate arguments and the evidentiary attachments that she submitted thereto. Complainant contested the Agency's decision to comment on problematic patients in her 2017 evaluation and also its calculation of her 2017 performance pay award. Indeed, Complainant submits a spreadsheet documenting those patients that the Agency had reassigned to other doctors in the third quarter of fiscal year 2016. Complainant provided explanations for each patient who had requested reassignment to a different doctor. Complainant suggested that management had not counted such patient reassignment requests against comparator doctors. Here, Complainant's settlement breach claim was not the proper mechanism to address her concerns about matters beyond the 2014 Proficiency Report. If Complainant chooses to challenge the Agency's pay awards or evaluations after the 2014 Proficiency Report, then Complainant may contact an EEO Counselor to initiate processing of new and separate claims on those issues.
CONCLUSION
Therefore, based upon the foregoing discussion, EEOC AFFIRMS the Agency's final decision finding that it had not breached the settlement that both Agency officials, Complainant, and her representative had signed on June 18, 2015.
Because we found that Complainant failed to evidence that a breach of the settlement occurred, it was unnecessary to address the Agency's contention that the breach allegation was untimely.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
The Commission may, in its discretion, reconsider the decision in this case if 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 (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
July 10, 2018
__________________
Date
1 Neither Complainant nor the Agency provided the correspondence containing Complainant's breach allegation. Nevertheless, for purposes of this present decision, we find the information of record on appeal sufficiently described the nature of Complainant's breach claim.
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