01997215
09-19-2000
Pamela S. Batchelor, Complainant, v. Hershel W. Gober, Acting Secretary, Department of Veterans Affairs, Agency.
Pamela S. Batchelor v. Department of Veterans Affairs
01997215
September 19, 2000
.
Pamela S. Batchelor,
Complainant,
v.
Hershel W. Gober,
Acting Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01997215
Agency No. 99-0410
DECISION
The agency issued a final decision dated August 23, 1999, acknowledging
breach of a settlement agreement when the agency failed to grant
complainant �priority consideration� for a position. As a remedy for
its breach, the agency extended complainant's priority consideration
to future vacancies, and instructed the facility on how to handle
complainant's priority consideration if she applied and was qualified
for future promotions.<1>
On September 20, 1999, complainant timely appealed the agency's
decision. Complainant argued, through her attorney, that the agency
failed to provide an adequate remedy for its breach. She also contends
that the agency's ultimate failure to select her for the position was
discriminatory. Complainant contends that the �obvious discriminatory
actions . . . would almost certainly . . . subject [the agency] to
paying damages. . . .� She requests placement in a GS-12 position with
upward mobility to GS 13 - 15, reimbursement of her leave, $93,359 for
compensatory damages, and $200,000 for punitive damages.
In response to her appeal, the agency contends that its remedy was
adequate. It argues that it expanded the period for complainant's
priority consideration and clarified the procedure for providing priority
consideration to the facility's officials. Further, it cites �new
evidence� to argue that no breach occurred at all.
The agency's �new evidence� consists of a September 2, 1999 letter from
the Medical Director of the Dayton, Ohio Medical Center. The Director
explains that complainant's priority consideration was limited to
positions within his supervision, and that the position in question was
controlled by the VISN10 Business Center, not himself. Although the
position was located on the Dayton �campus,� the Director argues that
it was not subject to complainant's priority consideration because it
was outside of his chain-of-command.
The February 8, 1999 settlement agreement requires the agency to:
Provide [complainant] priority consideration for positions at
the GS-12 level that she applies and is deemed qualified [sic].
Priority consideration for a GS-12 position will remain in effect until
[complainant] is selected, but not to exceed two years from the signing of
this agreement. Should the aggrieved be selected and accept a position
at the GS-12 level prior to the two-year timeframe [sic], the agency
has fulfilled its obligation for this agreement.
Any settlement agreement knowingly and voluntarily entered into by the
parties, reached at any stage of the complaint process, is binding on
both parties. See EEOC Regulation 29 C.F.R. � 1614.504(a) 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 parties' intent as expressed in the contract, not some unexpressed
intention, controls the contract 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 generally relies on the plain
meaning rule. See Hyon v. United States Postal Service, EEOC Request
No. 05910787 (December 2, 1991). Under this rule, the Commission
determines the meaning of settlement agreements without resort to
extrinsic evidence, provided the agreement is plain and unambiguous
on its face. See Brionez v. Department of Agriculture, EEOC Request
No. 05960492 (October 14, 1999)
Neither party disputes that complainant applied for a GS-343-12 position
advertised as �Program Analyst (Clinical Coordinator)� or, alternatively,
as �Registered Nurse, Grade II.� Complainant was found qualified for
the position and was referred for consideration with all other qualified
applicants. Complainant was not granted priority consideration.
Clearly, the agency has breached the agreement; it failed to grant
complainant priority consideration. The agency's argument on appeal is
without merit. The settlement agreement does not restrict complainant's
priority consideration to positions controlled by the Medical Director.
If the agency intended to restrict complainant's priority consideration
rights under the agreement, it should have negotiated to have such terms
written in the agreement.
Under EEOC Regulations, the remedies available for breach of the
agreement are specific performance of the agreement, or reinstatement
of complainant's underlying complaint. See 29 C.F.R. � 1614.504(a).
Complainant cannot obtain damages and a promotion as requested on
appeal. See Metts, et al. v. Department of Veterans Affairs, EEOC
Request No. 05970935 (June 11, 1998) (in breach finding for failure to
provide priority consideration, promotion, back pay, and increase in
salary not available). In its final decision, the agency essentially
offered to specifically enforce the agreement. On appeal, it appears
that complainant may wish to have her underlying complaint reinstated
(so that she may seek damages), and have the agency's failure to select
her as a Program Analyst considered as a complaint of discrimination, not
merely as a breach of the agreement. The agency must allow complainant an
opportunity to choose future priority reconsideration, or reinstatement
of her complaint on remand. Further, since complainant was a prevailing
party, she is entitled to attorney's fees pursuant to the attorney's
fees order referenced herein.
CONCLUSION
Accordingly, the agency's finding of breach is AFFIRMED. However,
its remedy is modified as provided in the order below.
ORDER
The agency is ORDERED to perform the following:
Within 15 days of the date this decision becomes final, the agency must
notify complainant of her right to choose either specific performance
of the settlement agreement, or reinstatement of her complaint. This
notification must inform complainant that choosing specific performance of
her agreement will result in continued priority consideration for future
positions, but choosing reinstatement of her underlying complaint will
end all priority considerations. The agency must allow complainant at
least 30 days to respond to this notice from the date she receives it.
The agency also must include, in the letter described in provision 1 of
this Order, complainant's right to seek counseling concerning her claim
that the agency's failure to select her constituted an independent act
of discrimination. It must allow complainant 30 days to seek counseling
for this latest incident.
If complainant requests reinstatement of the settled complaint, then the
agency must begin processing the underlying complaint from the point
processing ceased. The agency must inform complainant of the status
of all reinstated claims within 15 days of her request to reinstate,
and notify her of their resumed processing. Should complainant also
contact a counselor as provided in provision 2 of this Order, then the
agency must consolidate complainant's underlying complaint with the new
claims of discrimination.
A copy of the notice requesting that complainant choose either specific
performance or reinstatement of her complaint (and provide her right to
seek counseling) must sent to the Compliance Officer as referenced herein.
Additionally, the agency must forward a copy of the letter informing
complainant of the status of any reinstated claims.
ATTORNEY'S FEES (H0800)
If complainant has been represented by an attorney (as defined by
29 C.F.R. � 1614.501(e)(1)(iii), he/she is entitled to an award of
reasonable attorney's fees incurred in the processing of the complaint.
29 C.F.R. � 1614.501(e). The award of attorney's fees shall be paid
by the agency. The attorney shall submit a verified statement of fees
to the agency -- not to the Equal Employment Opportunity Commission,
Office of Federal Operations -- within thirty (30) calendar days of this
decision becoming final. The agency shall then process the claim for
attorney's fees in accordance with 29 C.F.R. � 1614.501.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0800)
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 19848,
Washington, D.C. 20036. 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)(Supp. V 1993). 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 (M0800)
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 19848,
Washington, D.C. 20036. 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (R0400)
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 (Z1199)
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 that the Court appoint
an attorney to represent you and that the Court 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 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 19, 2000
__________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
__________________
Date
______________________________
1On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply
to all federal sector EEO complaints pending at any stage in the
administrative process. Consequently, the Commission will apply
the revised regulations found at 29 C.F.R. Part 1614 in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.