0120160227
03-18-2016
Jamie K.,1 Complainant, v. Robert McDonald, 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
Jamie K.,1
Complainant,
v.
Robert McDonald,
Secretary,
Department of Veterans Affairs
(Veterans Health Administration),
Agency.
Appeal No. 0120160227
Agency No. 2004-0010-2011100569
DECISION
Complainant filed a timely appeal with this Commission from a final decision (FAD) by the Agency dated September 14, 2011, 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 complaint, Complainant worked as a Health Systems Specialist at the Agency's VA Central Office Health Administration facility in Washington, DC.
On March 2, 2011, Complainant and the Agency entered into a settlement agreement to resolve an EEO matter. The settlement agreement provided, in pertinent part, that:
(2c) "Within 20 days from being provided a scorecard from Complaint [sic] for measuring production on correspondence review, [Complainant's supervisor] shall review, modify, and submit for the approval the scorecard to her immediate superior; provided Complaint [sic] shall provide such scorecard to [the named supervisor] within 20 days of the effective date of this agreement;"
(2d) The Supervisor will track and share performance metrics with Complainant and clearly identify any item that could potentially count against the Complainant's performance rating as any negative item is identified...;
(2e) The Supervisor will establish tracking and reporting systems to monitor equity of access to training resources, assignment of special projects, and leave to ensure equality of access and opportunity across all Health Systems Specialist staff within the Network Support Office; and
(4b) Both parties also agree that this agreement constitutes the entire understanding between the parties. There are no other terms or commitments, either oral or written, to this agreement except those specified herein.
This Agreement was the subject of a prior appeal, Complainant v. Department of Veterans Affairs, EEOC Appeal No. 0120114180 (February 7, 2012). In that decision, OFO determined that the Agency breached three of the above referenced terms and ordered the Agency to provide Complainant with the option of reinstating his complaint or provide specific performance. Thereafter, OFO received notice that the Agency had complied with its order, by issuing a final determination, and closed its monitoring of compliance.
By submission to the Agency of an Agency Form 0860, Breach of Settlement Agreement Allegation, and letter to OFO, dated October 8, 2015, Complainant alleged that the Agency was in breach of the 2011 settlement agreement. Complainant stated that he has been raising his issues since February 20, 2014. He states the latest settlement breach occurred on September 30, 2015, "when the rating period ended and efforts to adjust the plan failed." Specifically, Complainant claims that the Agency failed to abide by email communications and promises made by his supervisor after the signing of the agreement. These communications were ones in which his immediate supervisor promised that she would remove all performance standards related to correspondence and indicated that his concerns would be addressed in the next rating cycle. It is not clear what relief Complainant is seeking.
The record shows that Complainant was rated "outstanding" for the FY 14 period. He expressed concerns to management about the inclusion of "correspondence components" into his FY 15 performance plan. He also asserted that his performance plan was untimely, because it was not provided to him until March 10, 2015. He raised nine concerns regarding the Agency's compliance with its own personnel policies and with the Office of Personnel Management (OPM) policies.
The Agency did not issue any Breach Determination in response to Complainant's October 8, 2015 breach allegation. In its response to Complainant's appeal, however, the Agency maintains that Complainant's new breach allegation, filed three years after compliance was closed, is untimely and should be dismissed. Complainant disagrees and notes that he is raising a new claim.
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).
The Commission has previously found that the above referenced provisions were part of a valid and binding Agreement and that the Agency breached the provisions that required that the Agency provide a scorecard and that the supervisor establish a tracking and reporting system. See Complainant v. Department of Veterans Affairs, EEOC Appeal No. 0120114180 (February 7, 2012). We also concluded that the Agency was in compliance with the terms of the Agreement at issue in EEOC 0620120437. Also See Complainant v. Department of Veterans Affairs, EEOC Appeal No. 0120160185 (February 4, 2016) (We reversed the dismissal of Complainant's harassment complaint and remanded the matter for investigation).
Timeliness
In the instant case, Complainant is raising new allegations which he states are based on the March 5, 2011 Agreement, and that the latest breach occurred during the FY 14 and FY 15 performance rating cycles. Therefore, we find that the Agency has not shown that the new breach allegations were untimely submitted because the most recent incidents occurred on September 30, 2015 and he raised his claim on or around October 8, 2015.
Breach Allegations
The gist of Complainant's latest breach claim is that the Agency failed to abide by promises made by his supervisor in recent email communications, in response to Complainant's expressed concerns as to the inclusion of correspondence components into the FY 15 cycle. He claims that the Agency failed to abide by OPM and Agency personnel policy. To address his concerns, his immediate supervisor promised that she would remove all performance standards related to correspondence.
In this case, we find that Complainant is not raising an issue within the scope of the March 5, 2011 Agreement for two reasons: 1) he is claiming non-compliance with subsequent oral promises that are not stated in the Agreement; and 2) the March 5, 2011 Agreement did not address Complainant's specific objections regarding the prerequisites for a valid performance plan or compliance with the OPM or Agency policy.
Although these claims are outside of the scope of the 2011 Agreement, we note that OFO remanded Complainant's EEO complaint for investigation. These matters may be addressed in that ongoing separate action.
For all of these reasons, we find that Complainant failed to show that the Agency breached the Agreement.
CONCLUSION
Accordingly, we treat the Agency's response as its Final Breach Determination and AFFIRM its determination that the claimed actions do not constitute a breach of the March 5, 2011 Agreement.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0815)
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 tends 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, 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 (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
March 18, 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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