Jeremy C.,1 Complainant,v.Robert Wilkie, Acting Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency.

Equal Employment Opportunity Commission

Apr 5, 2018

0120172437 (E.E.O.C. Apr. 5, 2018)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Jeremy C.,1
Complainant,

v.

Robert Wilkie,
Acting Secretary,
Department of Veterans Affairs
(Veterans Health Administration),
Agency.

Appeal No. 0120172437

Agency Nos. 200P-0605-2014102935,
200P-0605-2014104839,
200P-0605-2015104405

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 16, 2017, 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 Licensed
Vocational Nurse (LVN), GS-0620-06, at the Veterans Health Administration, Nursing Service
located in Loma Linda, California. Believing that the Agency subjected him to unlawful
discrimination, Complainant contacted an Agency EEO Counselor to initiate the EEO complaint
process. On February 16, 2017, Complainant and the Agency entered into a settlement
agreement (SA) to resolve the matter. The SA provided the following in pertinent part:

2(b) Within sixty (60) days of the effective date of this Agreement, the Agency
will provide the Complainant with his 2013-2014 performance appraisal and rate

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.
0120172437

2
it as “Outstanding.” Within the time-period set forth in this paragraph, a copy
will be placed in the Complainant’s eOPF.2

2(c) Within sixty (60) days of the effective date of this Agreement, correct the
Complainant’s SF-50 to reflect the date of reassignment to BHOST3 of July 13,
2014. Within the time-period set forth in this paragraph, the corrected copy will
be placed in the Complainant’s eOPF.

2(e) Within sixty (60) days of the effective date of this Agreement, the Agency
shall agree to the following reasonable accommodation:

i. The Complainant will go back to the main hospital facility at the
VA Loma Linda Health Care system, in the Mental Health Work
Area (previously known as the 2nd floor BHOST area); doing the
same job duties he previously had prior to his transfer to the new
facility in October 2016.

ii. The Complainant shall work in an office not to exceed two
employees (including Complainant).

iii. The Complainant will remain under the direct supervision of his
current supervisor, while applicable.

iv. The Complainant will continue in the same position and duties in
which he currently holds, while applicable.

v. Complainant will no longer oversee the purple team and instead
will be assigned to oversee a team located in the Mental Health
Work Area (previously known as the 2nd floor BHOST area) in
the Medical Center.

vi. The Complainant’s duty hours will be from 6:30 a.m.-3:00 p.m.

vii. The Complainant will not be required to respond to Code Blues
and will not be required to take part in the decanoate clinic/shot
clinic.

By letter to the Agency dated May 17, 2017, Complainant alleged that the Agency was in breach
of the SA, and requested that the Agency specifically implement its terms. Specifically,
Complainant alleged that the Agency had failed to comply with provision 2(b) of the SA when it

2 “eOPF” stands for electronic Official Personnel File.
3 BHOST refers to the Mental Health Work Area and is technically termed Behavioral Health
Service in Complainant’s SF-50.
0120172437

3
backdated Complainant’s 2013-2014 performance appraisal to April 1, 2014, and failed to obtain
Complainant’s signature. He alleged that the Agency failed to comply with provision 2(c) of the
SA when it: (a) failed to place the notation “Corrected Reassignment” in Block 5-B (Legal
Authority) of the reassignment SF-50; (b) failed to provide the approval date in Block 49; and (c)
failed to electronically sign the document (as opposed to a handwritten signature) at Block 50, as
required by OPM. He also alleged that the Agency failed to comply with provision 2(e) of the
SA when it assigned Complainant to work in the STAR Program supporting substance abuse and
addiction patients instead of assigning him to oversee a team located in the Mental Health Work
Area doing the same job duties he previously had prior to his transfer to the new facility in
October 2016, which was working with psychiatric patients that have depression, anxiety, and
Post Traumatic Stress Disorder.

In its July 12, 2017, Breach of Settlement Determination (FAD), the Agency’s Office of
Resolution Management (ORM) describes the evidence in the record.4 Specifically, ORM notes
that with respect to provision 2(b), on April 17, 2017, the Agency uploaded a copy of
Complainant’s 2013-2014 Performance Appraisal, reflecting an “Outstanding” annual rating, to
his electronic personnel folder. However, the document was not signed by either the “Approval
Official” or Complainant. ORM also notes that with respect to provision 2(c), on April 6, 2017,
a Notice of Personnel Action (SF-50) reflecting that Complainant was reassigned on July 13,
2014, was uploaded into his eOPF. However, according to ORM, Human Resources
Management Service (HRMS) did not modify the document to indicate that Complainant was
reassigned from “Nursing Service” to “Mental Health” and the document was not dated.5 ORM
further notes that on May 27, 2017, corrections were made to the SF-50 reflecting that
Complainant was reassigned from “Nursing Service” to the “Behavioral Medical Service,”
effective July 13, 2014, and this document was uploaded to Complainant’s eOPF.6

ORM further notes that provisions 2(b) and 2(c) of the SA should have been implemented no
later than April 16, 2017, but were satisfied on April 17, 2017 and May 27, 2017, respectively.
However, despite the failure to meet the time-frame specified in the SA, ORM concludes that the
Agency substantially complied with the terms of the agreement, with respect to provisions 2(b)
and 2(c). ORM also advised the Agency to revise the 2013-2014 Performance Appraisal to
include the missing signatures and upload an annotated revised version into Complainant’s
eOPF.

4 On July 10, 2017 (two days before ORM issued its decision), Complainant filed a premature
appeal. However, we find that the issuance of the FAD cured the defect and made the appeal
ripe for adjudication. See Franchesca V. v. Dep’t of the Treasury, EEOC Appeal No.
0120150620 (Mar. 24, 2017); Complainant v. Dep’t of Veterans Aff., EEOC Appeal No.
0120120712 (June 18, 2014).
5 This document contains a hand-written signature by “Human Resources Officer,” but the
signature is not legible.
6 This document contains an electronic signature by “[signature of HR1], Human Resources
Officer.”
0120172437

4
ORM notes that the Agency failed to produce information requested by ORM that was needed to
determine if the Agency breached provision 2(e) of the SA. ORM specifically asked for copies
of the functional statement for the position Complainant held before his transfer to the new
facility, for the position he held at the time the SA was executed, and for the position he
encumbers in the STAR Program. In anticipation that the duties of the STAR program are not
the duties described in the SA, ORM requested a statement detailing why the assignment differs
from what was promised. ORM also inquired if, in fact, the only remaining team in the
Behavioral Health Department (i.e., the gold team) at the main facility was transferred to the
Ambulatory Care Center (ACC) effective April 3, 2017, whether management was aware of the
move at the time the SA was executed, and further, what impact this decision would have on the
Agency’s ability to honor the terms of the agreement. Without such information, ORM
concludes that it is unable to determine if the terms and conditions of provision 2 (e) were
satisfied. Accordingly, ORM’s decision orders the Agency to execute the terms and conditions
of provision 2(e), and submit evidence of compliance to ORM. ORM also requested that the
2013-2014 Performance Appraisal be revised to include the signatures and annotated to reflect
that it is a corrected document.

CONTENTIONS ON APPEAL

In his appeal, Complainant asserts that his performance appraisal needs to be corrected as noted
by the FAD. With respect to provision 2(c), Complainant asserts that the reassignment SF-50
issued by the Agency is insufficient because it does not contain an approval date for the
personnel action and the handwritten signature of the approving official at block 50 is not legible
and therefore incapable of being verified, as OPM will have no way of knowing who the
approving official is or the date the approval was made.7 Complainant also asserts that OPM
requires that personnel actions such as the reassignment reflect the “corrected” employment
history and therefore the nature of the action at block 5-B should state “Corrected
Reassignment.” 8

Complainant further argues that the Agency breached provision 2(e) of the agreement by
assigning him to work in the STAR Program (i.e., a program where he is supporting substance
abuse and addiction patients). Complainant asserts that he has never performed STAR program
duties and these duties have never been included in his performance expectations and/or position
description. According to Complainant, since 2014, he has worked as a Mental Health Nurse
working solely with color teams of psychiatric patients. Complainant asserts that color teams are

7 Complainant also cites to OPM’s Guide to Processing Personnel Actions, Section 3-4, noting
that the use of any electronic signature must be approved by OPM to ensure it is capable of being
verified and must be linked to the data being transmitted, including the approval date.
8 Complainant cites to OPM’s Guide to Processing Personnel Actions, Section 2-10, ADP
Records and Systems, which states, “The agency that implements a decision is responsible for
taking whatever action is necessary to insure that its automated personnel records and systems
only reflect the ‘corrected’ employment history and that all references to cancelled actions have
been deleted from those records and systems.”
0120172437

5
separate from the STAR program, which is not a part of the color team structure. Complainant
argues that the STAR Program duties are not the “same job duties [he] previously had prior to
his transfer to the new facility in October 2016,” nor are these duties the same he held at the time
the agreement was executed, as required under the terms of the agreement. Complainant also
asserts that he cannot perform STAR program duties as working with substance abuse and
addiction patients has exacerbated his own PTSD and stress to the point where he has been
forced to take leave without pay as of April 24, 2017, and Family and Medical Leave Act
(FMLA) leave from June 27, 2017, since the Agency has done nothing to provide him with any
interim accommodation.

Moreover, Complainant asserts that it appears that the Agency never intended to comply with
provision 2(e) of the agreement and acted in bad faith since the Agency moved the Behavioral
Health Department’s only remaining team to the ACC building shortly after the SA was executed
and before Complainant’s move took place. Complainant further states that if he can no longer
be assigned a Behavioral Health Department color team at the Main Hospital then he should be
assigned back to ACC building working for the purple team.

AGENCY’S RESPONSE TO APPEAL

In its response, the Agency denies any breach and asserts that all obligations under the SA have
been fulfilled. The Agency also attaches as an exhibit a certified statement dated August 14,
2017, from Complainant’s supervisor (S1) who is a Registered Nurse.9 This statement was part
of the package submitted by the Agency in response to the FAD’s order requesting proof of
compliance with provision 2(e) of the SA. S1 states he was Complainant’s supervisor during and
after the move to the ACC in October 2016 and has been Complainant’s only supervisor since
May 2016 to the present. S1 states the following in relevant part:

… [Complainant] has the identical duties now, that he had in the ACC Purple
Team, and that he had prior to the move to the ACC, specifically to obtain and
properly document Vital Signs and Clinical Reminders for patients of Mental
Health Medication Prescribers. Prior to the Move to ACC, [Complainant] was
assigned to two Mental Health Color Teams, Blue and Purple, and supported
approximately 5 MD and NP10 Medication Prescribers. … After the move to the
ACC, to support [Complainant] with his difficulties in ambulating, I reduced his
requirement to a single color team, Purple, with its 3 medication prescribers.
When he was returned to mental health work area at the main facility, he was
assigned to the STAR team prescribers, which is approximately 1.0 FTEE11 of

9 The statement is signed and dated by S1 and states “I certify all the above statements to be true
and correct to the best of my knowledge and belief.”
10 We assume that MD stands for physicians and NP stands for nurse practitioners.
11 We assume that FTEE references a Full-Time Equivalent Employee.
0120172437

6
medication prescribers. His workload while assigned to STAR12 is at least half of
what it was in Purple Team at the ACC, which was half of what it was prior to the
move to ACC. … As previously noted, [Complainant] was relieved from
supporting Purple Team prescribers and was assigned to STAR team in the area
formerly known as BHOST. All color teams moved to the ACC, therefore he was
not assigned to a color team.

The Agency also asserts that there is no rule or provision that renders a performance appraisal
invalid due to the absence of an employee’s signature. With respect to the reassignment SF-50,
the Agency notes that the corrected version has the approval date of “07-13-2014” and was
electronically signed by HR1, Human Resources Officer. The Agency further asserts that the
Office of Personnel Management does not require “wet” signatures on SF‐50s. Additionally, the
Agency argues Complainant has not established that the failure to notate an SF-50 as “corrected”
renders it invalid. As such, the Agency argues that Complainant’s claim for attorney’s fees is
without merit as he did not incur any harm.

Pertaining to provision 2 (e), the Agency asserts that Complainant’s reassignment to the STAR
team entails the same duties he held prior to the execution of the SA.13 The Agency further
asserts that Complainant’s objection is working with a different patient population rather than
performing different “job duties.”

ANALYSIS AND FINDINGS

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).

12 According to the Loma Linda, California VA Medical Center’s website, the “STAR” program
refers to the Neuropsychology and Substance Treatment and Recovery program.
13 The Agency includes in its exhibits the functional statement for a LVN which does not
distinguish duties among assignment locations.
0120172437

7
In the instant case, we find that the Agency met its obligations under provision 2(b) of the SA.
The record shows that with respect to the performance appraisal, the only signature missing is
Complainant’s, which has not been shown to invalidate the appraisal.

We also find that the Agency met its obligations under provision 2(c) of the SA. The record
shows that the Agency issued an SF-50 establishing Complainant’s reassignment to “Behavioral
Medicine SVC” which was effective on July 13, 2014. We do not find that the SA’s terms
require the Agency to issue an SF-50 with the notation “corrected reassignment.” In addition, to
the extent that the appraisal was not completed in a timely manner, this did not undermine the
agreement’s purpose or effect. See Mopsick v. Dep’t of Health and Human Serv., EEOC Appeal
No. 0120073654 (Aug. 17, 2009), citing Baron v. Dep’t of the Treasury, EEOC Request No.
05930277 (Sept. 30, 1993).

Lastly, we find that Complainant failed to present sufficient evidence to establish that the
Agency breached provision 2(e) under the SA. Specifically, the record shows that the terms
under provisions 2(e)(iv) and (v) are the terms at issue herein. Nothing in those two provisions
requires the Agency to reassign Complainant to a color team. In addition, nothing in either
provision prohibits the Agency from assigning Complainant to a population of substance abuse
and addiction patients. The Agency was required to assign Complainant to work in the Mental
Health Work Area in the Medical Center. A review of the Loma Linda VA Medical Center
website clearly shows that substance abuse and addiction treatment falls under the Mental Health
Work Area. In addition, the record shows that the official duties of an LVN do not vary within
the area of Behavior Health. The only difference established by the record is between type of
patients treated. Accordingly, there is nothing to suggest that Complainant’s duties changed
when he was reassigned.

CONCLUSION

Accordingly, for the reasons set forth hereinabove, we find that the record contains sufficient
evidence to conclude that the Agency satisfied the terms of the SA and that Complainant has not
proven his claims as alleged.

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.
0120172437

8
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.

0120172437

9
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

April 5, 2018
Date