0120161337
06-09-2016
Marcel M.,1 Complainant, v. Robert McDonald, Secretary, Department of Veterans Affairs, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Marcel M.,1
Complainant,
v.
Robert McDonald,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120161337
Agency No. 0705200H2015101376
DECISION
Complainant filed a timely appeal with this Commission from a final decision (FAD) by the Agency dated January 28, 2016, 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 compliance action, Complainant worked as a EEO Specialist at the Agency's ORM facility in Lyons, New Jersey.
On May 15, 2015, Complainant and the Agency entered into a settlement agreement to resolve the matter. The settlement agreement provided, in pertinent part, that:
(2A) Agency Obligations: Provide an overall Excellent performance rating for the FY14 rating period, to be issued to the aggrieved party (i.e. Complainant) by May 30, 2015.
On January 13, 2016, Complainant accessed his Electronic Official Personnel Folder (eOPF) and discovered that the Agency rating of record for FY 2014 was "Fully Successful."
By letter, dated January 19, 2016, to the Office of Employment Discrimination Complaint Adjudication (OEDCA), Complainant alleged that the Agency was in breach of the settlement agreement. Specifically, Complainant alleged that the Agency failed to comply with provision 2A that required that the FY 14 rating be changed to "Excellent" by May 20, 2015. He requested that the Agency reinstate his complaint.
On January 22, 2016, the Agency's Office of Resolution Management (ORM) sent an email to OEDCA providing an updated copy of Complainant's Performance Appraisal Program form. The corrected information also reflected the processing of an award and the Overtime worked during the period.
Agency Decision
The Agency stated that Complainant failed to produce evidence supporting his allegation that ORM breached the Agreement. The Agency noted that ORM provided an updated status, stating that the VHA Service Center did not post the corrected appraisal when it forwarded the VA Form 4659 for Complainant. The Agency sent the corrected appraisal to the Chief, Office of Human Resource Services staff to forward. Next, the Agency reasoned that "ORM timely cured its breach of Paragraph 2A of the Agreement." The Agency stated "it is our decision that the evidence of record fails to substantiate Complainant's claim that the Agency breached the terms of the Agreement."
This appeal followed.
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).
We find that the Agreement was valid and binding on both parties.
In the instant case, the Agreement required that the Agency provide Complainant with an overall FY 14 rating of "Excellent." The record shows that the rating was not changed by May 30, 2015, because the lower rating of "Fully Successful" was still shown in his OPF when Complainant accessed it on January 13, 2016. However, once the Agency was provided notice of the alleged breach, the Agency promptly cured the breach when it provided a corrected appraisal rating, which was dated effective May 30, 2015.
Consequently, we agree with the Agency's determination that it complied with the Agreement.
CONCLUSION
Accordingly, we AFFIRM the Agency's Decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)
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 tends 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 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. The requests 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 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 such 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. 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
June 9, 2016
__________________
Date
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.
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