Lauretta R. King, Complainant,v.Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionNov 19, 2009
0120092938 (E.E.O.C. Nov. 19, 2009)

0120092938

11-19-2009

Lauretta R. King, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.


Lauretta R. King,

Complainant,

v.

Eric K. Shinseki,

Secretary,

Department of Veterans Affairs,

Agency.

Appeal No. 0120092938

Agency Nos. 200H-0630-2008102396 & 200H-0630-2008103782

DECISION

Complainant filed a timely appeal with this Commission from a final

decision (FAD) by the agency dated June 3, 2009, finding that it was in

compliance with the terms of the September 18, 2008 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 settlement agreement provided, in pertinent part, that:

(a) Effective immediately, Chief, Human Resources Service (hereinafter

CHR) shall ensure that the complainant's immediate supervisor gives her

assignments in, including but not limited to, the following areas:

I. Scheduling employee physical examinations;

II. Advising applicants concerning the agency's benefit package;

III. Assist the Human Resources Specialist regarding staffing matters;

IV. Screening applicants;

V. Requesting OPM Certificates of Eligibles; and

VI. Advising applicants concerning vacancies and employment opportunities

with the department of Veterans Affairs;

(b) To ensure that the complainant will receive the above assignments,

for a period of nine months dating from the signing of the agreement, CHR

agrees to monitor the complainant's assignments on a bi-weekly basis.1

To that end, CHR will meet with the complainant and her supervisor on a

bi-weekly basis for the purpose of providing feedback the complainant on,

among other things, the quality and timeliness of her work; and...

(d) It is further understood that, for a period of nine months from

the signing of this agreement in the event that the complainant is not

selected for a position within NYHHS HRMS, HRMS shall be required to,

upon request, within 30 days of such non-selection, provide a written

statement describing with particularity the reasons why the complainant

was not selected for the position within HRMS (for example, experience,

education).

In exchange for these promises, complainant agreed to withdraw complaints

200H-0630-2008102396 and 200H-0630-2008103782, and all other causes of

action arising before the execution of the settlement agreement.

By letter to the agency dated February 26, 2009, complainant alleged that

the agency was in breach of the settlement agreement, and requested that

the agency reinstate her complaint[s]. Specifically, complainant alleged

that the agency failed to assign her work, hold bi-weekly meetings,

and provide an explanation for a non-selection with particularity,

as agreed.

On assignments, complainant wrote that task II was assigned to employee

N.L., and complainant did not perform this task; that employee F.H. was

assigned to assist the Specialist on task III, thereby omitting the

need for complainant's assistance, and the Specialist was on a different

floor, making it difficult to work with her; that task IV was assigned

to employee F.H., not complainant; that task V was assigned to F.H. who

was the designated contact person, and complainant was not assigned this

task; and for task VI, outside individuals were directed to the personnel

office which is officially located on the 1st floor, and at no time was

anyone ever directed to the 9th floor, where complainant was located.

On monitoring/feedback meetings, complainant wrote that the CHR

substituted the November 28, 2008 meeting with a staff meeting, that the

CHR cancelled both the December 11, 2008 meeting and the December 18,

2008, rescheduled meeting, and that there were no meetings on December

24, 2008, and January 8, 2009. On appeal, complainant contends that the

CHR failed to notify or make contact with her on the later two meetings,

but at another point writes the CHR cancelled the January 8, 2009 meeting

by email. Complainant does not provide the email. Complainant adds on

appeal that the CHR also cancelled the meetings scheduled for February 5,

2009, February 11, 2009, and February 18, 2009. She submits copies of

emails by the CHR cancelling the meeting scheduled for February 5, 2009

and rescheduling it for February 11, 2009, due to a family emergency, and

cancelling the meeting scheduled for February 11, 2009, and rescheduling

it for February 18, 2009.

In response to complainant's request for an explanation of her

non-selection, the CHR gave complainant a letter in February 2009 with

respect to her non-selection for a human resource specialist vacancy.

The letter cryptically explained that complainant was not one of the top

five candidates referred for selection by a panel, and other qualified

candidates were selected. Complainant effectively contended that this

explanation was insufficient.

The CHR was asked by the agency to explain in detail the assignments

complainant was given. She replied that complainant's position

description contained all the tasks listed in the settlement agreement,

and that she was assigned to work with HR Specialist Ms. B and other

Specialists, if needed in performing the tasks. The CHR stated that

she met with Ms. B who supported that complainant was performing

the above duties, as assigned, and that in providing complainant

feedback/monitoring, complainant told the CHR that she was performing

the above duties. The CHR did not state when she met with Ms. B.

On the feedback/monitoring meetings, the CHR countered that bi-weekly

meetings were scheduled, and that complainant failed to show up to

the meetings scheduled for December 11, 2008 and January 8, 2009, and

requested emergency annual leave on January 22, 2009, so she did not

come to that meeting. In a memo to complainant dated January 28, 2009,

the CHR wrote that complainant missed the above meetings, and advised her

that if she needed to reschedule meetings, to contact her so arrangements

could be made.

In its June 3, 2009 FAD, the agency concluded that the agency complied

with the settlement agreement. The agency relied on the statements of

CHR, and an email by complainant in October 2008 that she was working

on Form 52s at the time. It also found that the agency provided an

explanation for the non-selection.

On appeal, complainant reiterates arguments made below. She concedes that

she missed a meeting scheduled for January 28, 2009, due to illness.

EOC 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).

On failure to assign tasks, complainant provided very specific information

about not being assigned tasks, and the CHR did not rebut this, rather,

she only generally contended complainant was assigned the tasks.

We credit complainant's account, given its specificity and the CHR's

general reply. On failing to hold monitoring/feedback meetings, in her

notice of breach dated February 26, 2009, complainant raised five missed

meetings, at least one a rescheduled meeting, between late November 2008

and early January 2009. While this is a significant number of meetings,

the CHR blamed complainant for missing two of them (December 11, 2008

and January 8, 2009), and complainant's explanation for missing the

December 24, 2008 and January 8, 2009 meetings lack persuasiveness (not

contacted about these meetings). Complainant does not state she was not

notified in advance that the meetings were scheduled. Complainant did not

establish a substantial breach of the meeting settlement agreement term.

The agency's cryptic explanation for why complainant was not selected

breached the term of the settlement agreement that she would get an

explanation with particularity. Merely indicating other qualified

candidates were referred and chosen was insufficient to satisfy the

settlement agreement.

Accordingly, the FAD is reversed, and the agency is directed to comply

with the order below.

ORDER

The agency is ordered to process complaints 200H-0630-2008102396 &

200H-0630-2008103782 from the point processing ceased in accordance with

29 C.F.R. Part 1614. The agency shall acknowledge to the complainant

in writing that it has received the remanded complaints within thirty

(30) calendar days of the date this decision becomes final.

A copy of the agency's letter of acknowledgment to complainant 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

November 19, 2009

__________________

Date

1 Complainant was placed in a paid, non-duty status effective February

19, 2009, and removed under various charges effective April 3, 2009.

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2

0120092938

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

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0120092938