Lonny H.,1 Complainant,v.Robert Wilkie, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Aug 20, 2020

2020001454 (E.E.O.C. Aug. 20, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Lonny H.,1 Complainant, v. Robert Wilkie, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2020001454 Agency Nos. 2004-0688-2014100831, 2004-0688-2015102497 DECISION Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from a final determination by the Agency dated October 11, 2019, 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 The record reflects that on February 7, 2018, the parties entered into an EEO settlement agreement. The parties executed an addendum to the February 7, 2018 settlement agreement on June 22, 2018. In pertinent part, the agreement as modified by the addendum provided that: (1)(e) [Complainant] and [a named Agency employee, A1] will be assigned different official duty stations with the following provisions: (i) [Complainant’]s official duty station is designated as the Washington District of Columbia, Department of Veteran Affairs Medical Center, located at 50 Irving St. NW, Washington D.C 20433 (DC VAMC); 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. 2020001454 2 (ii) As soon as practicable, [A1] will be relocated to an official duty other than the DC VAMC. (a) As of July 1, 2018, [A1] will be detailed out of the DC VAMC, pending change of his official duty station. In a Breach of Settlement Agreement Allegation form dated August 2, 2019, Complainant alleged that the Agency breached the addendum to the subject settlement agreement. Specifically, Complainant asserts that A1 has returned to patient care in DC VAMC and is included in the daily schedule when he is off-duty. In a final determination, dated October 11, 2019, the Agency found no breach of the addendum to the settlement agreement. The Agency stated that “[t]he record shows that on July 1, 2018, [A1] was relocated to an official duty station other than the DC VAMC. Specifically, [A1] was relocated to a primary duty station at the Montgomery CBOC. The addendum to the settlement agreement does not [specifically] state that [A1] is prohibited from ever [temporarily] working at the DC VAMC.” The instant appeal followed. On appeal, Complainant reiterates her breach claim and alleges that he has been assigned an unequal workload due to discrimination. 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). In the instant case, we are unable to ascertain whether the Agency is in breach of the addendum to the settlement agreement. Complainant submitted with his appeal a copy of the Agency’s October 11, 2019 final determination, the February 7, 2018 settlement agreement and June 22, 2018 addendum. In addition, Complainant submitted a copy of his breach of settlement allegation dated August 2, 2019. However, the Agency did not submit any documentation to the Commission’s Office of Federal Operations (OFO) regarding this matter. 2020001454 3 While the Agency’s October 11, 2019 final determination asserts that the Agency’s Office of Resolution Management (ORM) received “compliance documentation” and references various documents, the record before us does not contain any of this documentation. Thus, we are unable to determine whether the Agency is in compliance with the addendum. Finally, Complainant, on appeal, alleges that he has been assigned an unequal workload due to discrimination. EEOC Regulation 29 C.F.R. § 1614.504(c) states that allegations that subsequent acts of discrimination violate a settlement agreement should be processed as a separate complaint. Thus, to the extent Complainant wishes to pursue his claim of an unequal workload in the EEO process, he should contact an Agency EEO Counselor to initiate a new complaint. Accordingly, we VACATE the Agency’s final determination and REMAND this matter to the Agency for further processing in accordance with the ORDER below. ORDER The Agency shall take the following actions within forty-five (45) calendar days from the date this decision is issued: 1. Supplement the record with documentation clearly showing whether the Agency is in compliance with the June 22, 2018 addendum to the settlement agreement. The Agency shall include documentation showing that A1 has been relocated to an official duty station other than the DC VAMC. 2. The Agency shall issue a new decision regarding whether it is in compliance with the June 22, 2018 addendum to the settlement agreement, with appeal rights to the Commission’s Office of Federal Operations. A copy of the new decision must be included in the Agency’s compliance report as set forth below in the paragraph entitled “Implementation of the Commission’s Decision.” IMPLEMENTATION OF THE COMMISSION’S DECISION (K0719) 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 in the digital format required by the Commission, and submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). 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. 2020001454 4 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. Failure by an agency to either file a compliance report or implement any of the orders set forth in this decision, without good cause shown, may result in the referral of this matter to the Office of Special Counsel pursuant to 29 C.F.R. § 1614.503(f) for enforcement by that agency. 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. 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). 2020001454 5 COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (R0610) 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 (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 August 20, 2020 Date