0120063400
10-31-2006
Patricia E. Daley, Complainant, v. R. James Nicholson, Secretary, Department of Veterans Affairs, Agency.
Patricia E. Daley,
Complainant,
v.
R. James Nicholson,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01200634001
Hearing No. 310-2006-00090X
Agency No. 2003-0549-2005102715
DECISION
Complainant filed a timely appeal with this Commission from a final
decision2 (FAD) by the agency dated March 1, 2006. Pursuant to 29
C.F.R. � 1614.401, we accept complainant's appeal.
During the relevant period, complainant was employed as a Dentist at a
Texas facility of the agency. On March 28, 2005, complainant and the
agency entered into a settlement agreement, which provided, in pertinent
part:
WHEREAS, Complainant has alleged damages and attorney fees of
approximately Fifteen Thousand and no/100 Dollars ($15,000.00) . . .
1. Within ten (10) days of the date this Agreement is signed by
[complainant] Complainant agrees to file an application for a disability
retirement. In the event that such disability retirement is accepted
by the Office of Personnel Management (OPM), the Agency agrees to pay to
Complainant a total of Fifteen Thousand and no/100 Dollars ($15,000.00).
In the event that the disability retirement is not granted by OPM,
the Agency shall have no obligation to pay Complainant. In such event,
Complainant agrees to seek, and the Agency agrees to assist Complainant,
in seeking a transfer to any other Agency facility of her choice.
Nothing herein, however, shall be construed as a guarantee of transfer, it
being the intent that the Agency will merely assist in any transfer that
is mutually agreeable to Complainant and another Agency facility. . . .
3. The parties agree that, if and when Complainant is able to come back
to work, the Agency will assign her to work with patients for one-half
day and for the other half day to work in the lab; conditioned that such
arrangement shall be effective for only sixty (60) calendar days. . . .
5. The Agency, on behalf of itself, its officers, agents and employees,
hereby releases and forever discharges Complainant, individually and
on behalf of her predecessors, successors, assigns, heirs, executors,
administrators, legal representatives and agents, from any and all claims,
demands, damages, actions, or suits in equity, of whatever kind of nature,
whether heretofore or hereafter accruing, know or unknown, which arises
or may arise out of the Claim.
On May 26, 2005, complainant initiated contact with an EEO Counselor,
and, subsequently, filed a formal EEO complaint, alleging that the
agency discriminated against her based on sex (female) and reprisal
for prior EEO activity3 when it (1) on May 5, 2005, issued her a "low
satisfactory" performance appraisal (2) indicated information about
her medical impairment on the May 2005 appraisal and (3) refused to
remove a reprimand that complainant received two years earlier from her
personnel file4. Subsequently, in June 2005, complainant contacted
the agency alleging that it breached paragraph 3. of the March 2005
settlement agreement when it (4) on May 5, 2005, placed complainant
on administrative leave regarding health matters, (5) on May 6, 2005,
required complainant to undergo a fitness-for-duty examination, and (6)
in early August 2005, failed to reinstate complainant to her position
as a Dentist. In addition, complainant alleged that the agency breached
paragraph 5. of the agreement when it made negative comments and issued
a low performance appraisal for the period covered by the settlement
agreement. Summarily, complainant alleged that the agency subjected
her to a hostile work environment.
In a decision dated July 19, 2005, the agency found no breach as to
(4) through (6). Specifically, the agency stated that complainant was
released to return to duty by her personal physician and the Employee
Health Physician, but the agency had reason to believe that complainant's
ability to perform the essential functions of her position had been
compromised, so it placed complainant on administrative leave pending
the results of a fitness-for-duty examination. Further, regarding (1),
the agency found that the negative performance rating was not a breach
of provision 5. of the agreement, but rather a need consistent with the
agency's requirement to provide the best care for its patients. Finally,
the agency stated that (1) and (4) through (6) would be more appropriately
addressed as allegations of discrimination rather than as of breach.
In correspondence dated September 15, 2005, the agency issued a Partial
Acceptance of complainant's complaint and amendments. Specifically,
the agency accepted claim (1) for investigation; and dismissed (2) for
failure to state a claim stating that complainant alleged a violation
of the Privacy Act and (3) for initiating contact with an EEO Counselor
in an untimely manner. Further, the agency accepted (4) and (5) as
supporting evidence for claim (6). The agency conducted an investigation
of complainant's accepted claims.
The record includes the following documentation: a Proficiency Report
dated May 5, 2005 regarding complainant for 2004 through 2005, from
the Chief of the Dental Service (S1) stating "[complainant] is under
psychiatric treatment for major depression;" a letter dated June 29,
2005, from OPM, stating that it has approved complainant's application
for disability retirement and that her disability annuity can begin once
the agency has separated her from employment and she has applied for
social security benefits, and that, if she recovers from her illness,
the agency is not obligated to rehire her; a letter dated August 2,
2005, from OPM, stating that it found complainant disabled based on
"major depression" and it will discontinue her disability benefits
based on submitted medical documentation; a copy of a Federal check in
the amount of fifteen thousand dollars, dated July 21, 2005, and signed
received by complainant on August 3, 2005; and a letter dated August 16,
2005, from the agency, indicating that Paragraph 3. was to apply only if
complainant was not approved for disability retirement and had to return
to the agency and attempt to transfer to another agency facility, and
that complainant's employment with the agency ceased once OPM approved
her for disability retirement, which was confirmed when she accepted
payment of $15,000.00 from the agency.
Following its investigation, the agency informed complainant of the
right to request a hearing before an EEOC Administrative Judge (AJ)
or an immediate final decision by the agency. Complainant chose the
former. An AJ issued an Order of Dismissal finding that the Commission
lacked jurisdiction at the hearing stage because the matter fell under
29 C.F.R. � 1614.504 as an allegation of breach. The agency did not
issue a final order within forty days. Thus, pursuant to 29 C.F.R. �
1614.109(i), the AJ's decision became the final action of the agency.5
Complainant filed the instant appeal. In response to complainant's
appeal, the agency requested that we remand the matters to it.
With regard to (1), the "low satisfactory" performance appraisal,
we find that performance appraisals do not fall within the scope of
the March 28 settlement agreement, so the matter must be treated as a
separate complaint. See 29 C.F.R. � 1614.504(c). The record reveals that
complainant initiated contact with an EEO Counselor and filed a formal EEO
complaint regarding (1), but following an extensive procedural history,
an AJ dismissed the matter at the hearing stage for lack of jurisdiction.
Thus, we find that the matter should be remanded to the agency for
processing from the point that processing ceased.
Regarding (2), in its September 15 Partial Acceptance, the agency presumed
incorrectly that the Privacy Act is the only authority prohibiting the
improper disclosure of medical information. However, to the contrary,
the Rehabilitation Act also provides that information obtained regarding
the medical condition or history of any employee shall be treated as
a confidential medical record. 29 C.F.R. � 1630.14(c). The Commission
regards documentation of the individual's diagnosis or symptoms as
confidential medical information. ADA Enforcement Guidance: Preemployment
Disability-Related Questions and Medical Examinations (Guidance)
(October 10, 1995) at 22, n.26. An employer should not place any
medical-related material in an employee's non-medical personnel file.
Guidance. If complainant's supervisor disclosed information regarding
the nature of complainant's impairment, a violation of Section 501 of the
Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. �
791 et seq., could result and render complainant aggrieved. We note
that although complainant stated, during the agency's investigation,
that she is not alleging disability as a basis of discrimination, the
Rehabilitation Act does not limit the prohibitions against improper
disclosure of confidential medical information to individuals with
disabilities. Based on the above, we also remand (2) to the agency for
further processing.
As to (3), complainant alleged that she asked the agency to remove a
reprimand issued during the 2002 to 2003 performance rating period from
her personnel file and the agency refused to do so. The record indicates
that the agency refused to remove the reprimand at least through the EEO
Counseling period for the instant complaint. Pursuant to 29 C.F.R. �
1614.105, an aggrieved person must initiate contact with an EEO Counselor
within 45 days of the date of the alleged discriminatory action or
the effective date of a personnel action. An agency may dismiss a
complaint that does not comply with applicable time limits, including
those outlined in � 1614.105, unless the agency extends the time limits
in accordance with � 1614.604(c). 29 C.F.R. � 1614.107(a)(2). We find
that complainant's initial contact is timely as the agency's refusal
was consistent and the record indicates that the reprimand remained in
complainant's file at the time the EEO Counselor contacted the responsible
management official.
Finally, the Commission agrees that (4) through (6) are most appropriately
analyzed pursuant to 29 C.F.R. � 1614.504. 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. 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).
In the instant case, in paragraph 1., complainant agreed to file an
application for disability retirement and the agency agreed to pay her
fifteen thousand dollars if OPM approved her application. Contrarily,
in the event that the disability retirement was not granted, complainant
agreed that the agency would have no obligation to pay her and the
agency agreed that it would assist complainant in seeking a transfer
to another agency facility of her choice. Further, in paragraph 3.,
the agency agreed to allow complainant to return to work and assign
her to work with patients for one-half day and work in a lab for the
remaining half day effective for sixty calendar days. The record shows
that complainant filed an application for disability retirement with OPM
and OPM approved the application. OPM's response noted specifically that
complainant could later be found to be recovered from her impairment and
the agency would not have any obligation to rehire her. In addition,
the record reveals that complainant accepted payment from the agency in
the amount of $15,000.00 on August 3. Based on the plain meaning of the
agreement, we conclude that OPM's approval of disability retirement for
complainant led to her separation of employment with the agency and her
receipt of a $15,000 payment. It is reasonable that the agency did not
agree to rehire complainant once she accepted disability retirement.
Thus, we find that the agency did not breach the March 28 settlement
agreement.
In conclusion, we reverse and remand (1) through (3) in accordance with
this decision and the order below, and affirm (4) through (6).
ORDER
The agency shall submit to the Hearings Unit of the Dallas District Office
the request for a hearing within fifteen (15) calendar days of the date
this decision becomes final. The agency is directed to submit a copy of
the complaint file to the EEOC Dallas District Office within fifteen (15)
calendar days of the date this decision becomes final. The agency shall
provide written notification to the Compliance Officer at the address set
forth below that the complaint file has been transmitted to the Hearings
Unit. Thereafter, the Administrative Judge shall issue a decision on the
complaint in accordance with 29 C.F.R. � 1614.109 and the agency shall
issue a final action in accordance with 29 C.F.R. � 1614.110.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
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) (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 (M0701)
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).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (T0900)
This decision affirms the agency's final decision/action in part, but it
also requires the agency to continue its administrative processing of a
portion of your complaint. 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 on both that portion
of your complaint which the Commission has affirmed and that portion
of the complaint which has been remanded for continued administrative
processing. 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 your appeal with the Commission, until
such time as the agency issues its final decision on your complaint.
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 (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
October 31, 2006
__________________
Date
1 Due to a new Commission data system, this case has been redesignated
with the above-referenced appeal number.
2 The final agency action is an Order of Dismissal, dated March 1,
2006, issued by an EEOC Administrative Judge. Based on the record,
the agency failed to render a final decision within 40 calendar days of
its receipt of the Administrative Judge's decision, rendering the AJ's
March 1 decision final.
3 During the agency's fact-finding, complainant stated that disability
is not a basis of alleged discrimination for her complaint.
4 The record indicates that the agency informed the incumbent union
that it would not remove the reprimand from complainant's file on
March 31, 2005 and the EEO Counselor's Report indicates that the
responsible management official stated that the reprimand would remain
in complainant's file because of her poor performance.
5 Due to the extensive procedural history herein, we will also consider
the agency's July 19, 2005 no breach determination and September 15,
2005 Partial Acceptance as part of the final action as they also address
the claims.
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0120063400
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120063400