0120092154
09-17-2009
Judy Sutyak, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Judy Sutyak,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120092154
Agency Nos. 200J-0330-2006101037
200J-0330-2009100095
DECISION
Complainant filed a timely appeal with this Commission from two final
decisions (FAD) by the agency.
The first FAD (FAD 1) was dated March 23, 2009, dismissing her
complaint of discrimination alleging a violation of the Section 501
of the Rehabilitation Act of 1973, as amended, 29 U.S.C. � 791 et
seq. (Rehabilitation Act). On December 15, 2008, complainant had
filed a complaint alleging that the agency failed to provide her with
a reasonable accommodation in the form of alterations to her desk as
a result of an ergonomic assessment in 2007. The agency dismissed the
complaint, finding that it raised the same issue which had previously
been settled and was the subject of a breach of settlement claim.
The second FAD (FAD 2), issued on March 26, 2009, found that the agency
was in compliance with the terms of the October 18, 2007 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.
The October 18, 2007 settlement agreement provided, in pertinent part,
that:
Within a reasonable time after the Effective Date of this agreement,
the Agency will contract with Aurora St. Lukes Hospital to perform
a re-evaluation of the Complainant's work area and will provide the
Complainant with a copy of all reports generated from this re-evaluation,
as well as all reports previously generated from evaluations of the
Complainant's work area.
By fax to the agency dated November 6, 2008, 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 contract with Aurora St. Lukes,
failed to provide complainant with copies of reports generated from a
re-evaluation of her work area, and failed to implement the accommodations
recommended as a result of the re-evaluation conducted of her work area
March 15, 2008.
In FAD 2, the agency concluded that the re-evaluation had been conducted
by Aurora St. Lukes on April 15, 2008, but the agency did not receive
a copy of the re-evaluation report until November 5, 2008. The agency
further asserted that the report was provided to complainant on November
25, 2008. Finally, the agency argued that the recommendations in the
report were completed on February 4, 2009. The agency noted that the
settlement agreement only required that the agency obtain a re-evaluation
and was silent on when or if modifications to the workstation would be
done. As such, the agency determined that it conducted the re-evaluation
in good faith in accordance with the settlement agreement. Therefore,
the agency concluded that it did not breach the settlement agreement.
In addition, the agency noted that it dismissed complainant's complaint
regarding denial of reasonable accommodation pursuant to 29 C.F.R. �
1614.107(a)(1).
Complainant, through counsel, appealed. On appeal, complainant indicated
that there were two issues being raised in the appeal. The first issue
was a claim of breach of the October 18, 2007 settlement agreement.
The second matter is the December 15, 2008 complaint which was dismissed.
Breach of Settlement Agreement
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. Department of Defense,
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. Department 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. United States Postal
Service, 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, after careful consideration of the record and the
arguments on appeal, finds that complainant has not met her burden
of establishing that the agency breached the settlement agreement.
The settlement agreement only stated that the agency was obligated to
contract with Aurora St. Lukes Hospital to perform a re-evaluation of
the complainant's work area and would provide the complainant with a
copy of all reports generated from this re-evaluation. The record shows
that the agency did have a re-evaluation conducted on complainant's work
by Aurora St. Lukes in April 2008, and forwarded complainant a copy of
the report when it received it in November. Therefore, the Commission
concludes that the agency has complied with the settlement agreement.
Dismissal of Complaint
Complainant also filed an EEO complaint alleging that the agency failed to
provide her with a reasonable accommodation in the form of modifications
to her workspace as a result of the re-evaluation of her work area.
The agency dismissed this complaint pursuant to 29 C.F.R. � 1614.107(a)(1)
for failure to state a claim for it is related to the issues within the
settlement agreement. Upon review, we find that the agency improperly
dismissed this complaint.
As the agency noted, the settlement agreement merely required the
agency to conduct a re-evaluation of complainant's workspace and to
provide a copy of the report generated to complainant. Further, the
Commission reminds the agency that it has an ongoing duty to provide
reasonable accommodation irrespective of the provisions of the settlement
agreement. As such, we find that complainant is raising a subsequent
claim of failure to provide reasonable accommodation in violation of the
Rehabilitation Act. Consequently, FAD 2 which dismissed the complaint
was not appropriate.
Therefore, we affirm FAD 1's finding of no breach of the settlement
agreement. However, we REVERSE FAD 2 and REMAND the complaint in
Agency No. 200J-0330-2009100095 to the agency for further processing in
accordance with this decision and Order below.
ORDER (E0408)
The agency is ordered to process the remanded reasonable accommodation
claim (Agency No. 200J-0330-2009100095) in accordance with 29 C.F.R. �
1614.108 et seq. The agency shall acknowledge to the complainant that
it has received the remanded claims within thirty (30) calendar days
of the date this decision becomes final. The agency shall issue to
complainant a copy of the investigative file and also shall notify
complainant of the appropriate rights within one hundred fifty (150)
calendar days of the date this decision becomes final, unless the matter
is otherwise resolved prior to that time. If the complainant requests a
final decision without a hearing, the agency shall issue a final decision
within sixty (60) days of receipt of complainant's request.
A copy of the agency's letter of acknowledgment to complainant and a
copy of the notice that transmits the investigative file and notice of
rights must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K1208)
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 submitted to the Compliance Officer, Office of Federal Operations,
Equal Employment Opportunity Commission, P.O. Box 77960, Washington,
DC 20013. 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.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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), 9-18 (November 9, 1999). 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 (R0408)
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. 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 (Z1008)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request from the Court that
the Court appoint an attorney to represent you and that the Court also
permit you to file the action without payment of fees, costs, or other
security. See Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. � 2000e et seq.; the Rehabilitation Act of 1973, as amended,
29 U.S.C. �� 791, 794(c). The grant or denial of the request is within
the sole discretion of the Court. Filing a request for an attorney with
the Court does not extend your time in which to file a civil action.
Both the request and the civil action must be filed within the time
limits as stated in the paragraph above ("Right to File A Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
September 17, 2009
__________________
Date
2
0120092154
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
5
0120092154