0120121913
07-27-2012
Louise Cormier, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Louise Cormier,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120121913
Agency No. 200P05932009103409
DECISION
Complainant filed a timely appeal with this Commission from a final decision (FAD) by the Agency dated March 6, 2012, 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
Complainant was employed as a Medical Support Assistant at the VAMC in Las Vegas Nevada.
Believing that the Agency subjected her to unlawful discrimination, Complainant contacted an Agency EEO Counselor to initiate the EEO complaint process. On August 6, 2010, Complainant and the Agency entered into a settlement agreement to resolve the matter. The settlement agreement provided, in pertinent part, that:
(2a) Within 30 days of full execution of the Agreement the Agency shall reassign Complainant from her current position as a Medical Sup[port] Assistant GS-679-05, PD No. 3099A, in the VASNHS Health Administration Service at the North Clinic to a position as a Medical Support Assistant GS-0679-05 PD No 3892A, in the VASNHS Health Administration Service at the South West Clinic. A current copy of PD No. 3892A is at attachment A hereto.
After her reassignment, Complainant filed an EEO complaint (Agency No. 200P-0593-201101760) alleging she was subjected to harassment and a hostile work environment. Complainant specifically stated that the position to which she was reassigned pursuant to the settlement agreement was an entry level job, under the supervision of the same management officials, and she was subjected to inappropriate comments at the clinic. Complainant also alleged seven other claims related to her work place environment. The Agency dismissed her complaint and Complainant appealed to the Commission. In Appeal No. 0120112730 (October 7, 2011), the Commission remanded Complainant's claim regarding the settlement agreement for processing as a breach of settlement agreement claim. The dismissal of the remaining claims with respect to her work environment was affirmed for failure to state a claim. Thus, the Agency processed her breach of settlement agreement with respect to her reassignment upon receipt of the Commission's decision.
In its March 6, 2012 FAD, the Agency concluded it was not in breach of the agreement because it had reassigned Complainant in accordance with the agreement. The Agency noted that the agreement does not state by whom Complainant would be supervised, and if she had desired a specific supervisor she should have negotiated such terms.
In her appeal, Complainant states that the Agency and the Commission did not consider her health before moving her to another location "under good faith." Complainant asserts she signed the agreement under duress and did not intend to dismiss her complaint. Complainant also states that "any reasonable person would not accept a position with a higher volume of patients and an even more demanding fast pace work environment as well as a further commute from home." Complainant submitted medical documentations with her appeal.
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, the agreement required the Agency to reassign Complainant. The Agency submitted documents indicating that Complainant was reassigned, and Complainant does not dispute this. Rather, Complainant now seems unhappy with her reassignment because there is more work and a longer commute. The Commission notes that the agreement allowed Complainant seven days to revoke the agreement. While Complainant states she was under duress, she provides no evidence of such. In addition, Complainant's representative signed the agreement. Thus, the Commission is not convinced by Complainant's arguments.
Accordingly, the Commission finds that the Agency has not breached the agreement. The Agency's decision finding no breach is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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 (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 (Z0610)
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
July 27, 2012
__________________
Date
2
0120121913
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120121913