0120101048
06-11-2010
Ralph C. Norman, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Ralph C. Norman,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120101048
Agency No. 200405122007102891
DECISION
Complainant filed a timely appeal with this Commission from a final
decision (FAD) by the agency dated December 16, 2009, finding that it
was in compliance with the terms of the November 29, 2007 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.
The settlement agreement provided, in pertinent part, that the agency
shall:
(1) change Mr. Norman's immediate supervisor from the Chief, Medical
Administrative Service (MAS) (identified person) to the Associate Chief
of Operations, MAS (identified person);
(2) allow complainant to participate in the MAS Executive Committee
to discuss the reorganization of MAS;
(3) permit complainant to retain the title of Medical Administration
Officer with the primary function as the Education Coordinator for MAS;
and
(4) submit a request to the VAMHCS Space Committee for a swing office
at the Baltimore site of the VA Maryland Healthcare System to provide
a work area for MAS employees from other sites.
By letter to the agency dated October 21, 2009, complainant alleged that
it breached the settlement agreement, and requested that his complaint
be reinstated. Specifically, complainant alleged that his immediate
supervisor was the Chief, MAS. He contended that his position of
Medical Administration Officer is not reflected on the organizational
chart and he is not able to perform as a manager, e.g., he was in a
remote location without access to staff and office resources, and his
subordinates were utilized by the Chief, MAS for duties that are not
their function. Complainant wrote that a swing office in Baltimore was
never established for him so he could manage his subordinates there,
and he recently learned that Baltimore MAS office space was given to
an employee outside MAS. Complainant, per the settlement agreement,
was stationed in another facility.
In reply to the notice of breach, the Chief, MAS wrote that from November
27, 2007 to September 4, 2008, complainant's immediate supervisor was
the identified Associate Chief of Operations, MAS, but she was promoted,
and her position was vacant from September 4, 2008 to August 30, 2009.
She wrote that the successor Associate Chief was on an indefinite detail.
The Chief wrote that MAS was not under a reorganization, and complainant
remained classified as a Medical Administration Officer, as agreed.
The Chief stated that she contacted the acting space planner about a swing
office and it was determined that space would be provided once a week
as is part of hospital protocol. She wrote that complainant was given
an office once a week and used it to meet with staff from November 27,
2007 to July 2008, but he then stopped coming to Baltimore and did not ask
or inquire about continuing to do so. The Chief stated there was vacant
space at the Baltimore site through October 15, 2009, and presently, space
was identified that he could share once a week with another employee.
Thereafter, the Chief, MAS followed up by writing that since her initial
response, she told the successor Associate Chief of Operations, MAS,
who was working between her detail and Associate Chief positions, to
directly supervise complainant. She submitted an organizational chart
showing the Education Coordinator reported to the Associate Chief.
The record contains a prior notice of breach dated November 21, 2008, that
has not been addressed by the agency. Complainant contended that the
agency breached terms 2, 3 and 4 of the settlement agreement. On claim 3,
complainant indicated that the agreed actions never transpired, and an
organizational chart indicating the contrary was false.
In its December 16, 2009 FAD, the agency, relying on the statements of
the Chief, MAS, concluded it did not breach the settlement agreement.
On appeal, complainant contends that the agency breached the settlement
agreement. He writes that since the former Associate Chief of
Operations, MAS left the service on August 30, 2008, his immediate
supervisor has been the Chief, MAS. He contends that the successor
Associate Chief has only been in an acting capacity thereafter when
the Chief, MAS was absent, and the Chief was his immediate supervisor.
Complainant submits his annual appraisal which was done on November 2,
2009, and the rater is the Chief, MAS. On term 2 of the settlement
agreement, complainant indicates that the Chief created the pretense of
reorganization by starting an education department with him as the head,
but his subordinates never fulfilled their duties, and were instead used
by the Chief, MAS for other purposes. He concedes that he technically
maintains his position as Medical Administration Officer. He contends
that the organizational chart misrepresents his function. On the swing
office, complainant writes that he was never provided space in Baltimore
as the settlement agreement indicated, no office was designated, and
there is no space there for such an office.
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).
On term 1 both parties indicate complainant was supervised by the
identified Associate Chief of Operations, MAS, as agreed, from November
27, 2007 until August 30, 2008 or September 4, 2008, when she was
promoted or left MAS. Complainant was then supervised by the Chief, MAS.
The Associate Chief position remained vacant until August 30, 2009, and
then shortly after the successor Associate Chief went on an indefinite
detail to another job. It is uncontested that complainant continued
to be supervised by the Chief until sometime shortly after submitting
his notice of breach in October 2009. It is contested whether the
successor Associate Chief, who was still detailed, assumed supervision
of complainant thereafter.
Complainant was supervised by the Associate Chief, as agreed, until she
left after some nine months, and the Chief then assumed supervision.
By analogy, we observe that the Commission has held that a settlement
agreement that places a complainant into a specific position, without
defining the length of service or other elements of the employment
relationship, will not be interpreted to require the agency to employ the
complainant in the identical job specified forever. Papac v. Department
of Veterans Affairs, EEOC Request No. 05910808 (December 12, 1991) and
Elliott v. United States Postal Service, EEOC Appeal No. 01970474 (August
27, 1997). In the absence of a specific time frame in a settlement
agreement, it is interpreted to be for a reasonable amount of time.
Parker v. Department of Defense (Defense Logistics Agency), EEOC Request
No. 05910576 (August 29, 1991) (agreement that did not specify length of
service for position to which complainant was promoted was not breached
by the temporary detail of complainant two years after the execution
of the settlement agreement). Applying the above legal principals,
and taking into account that the Associate Chief left, we find that the
agency complied with term 1 of the settlement agreement.
Complainant contends that the agency breached term 2 of the settlement
agreement by falsely claiming to reorganize MAS by adding the Education
Coordinator function, with him as head, without giving him an opportunity
for input. To the extent the agency added an Education Coordinator
function, this did not constitute a reorganization. Moreover, the
function was added pursuant to the settlement agreement. Accordingly,
we find the agency did not breach term 2 of the settlement agreement.
It is uncontested that the agency permitted complainant to maintain the
title of Medical Administration Officer. On appeal, complainant concedes
that he technically maintains this position. However, complainant has
consistently maintained that he has not been performing the function as
Education Coordinator, as agreed in the settlement agreement. He contends
that while he shows up on organizational charts as having this function,
he has been moved to a remote location without access to staff or office
resources, and his subordinates were and are utilized by the Chief, MAS
for duties which are not their function. The agency has not adequately
addressed these contentions. The order below will address this matter.
On term 4, the parties contest whether complainant was provided a swing
office in Baltimore. However, it is uncontested that the Chief, MAS,
submitted a request to the VAMHCS Space Committee for a swing office,
as agreed. Accordingly, we find that the agency complied with term 4
of the settlement agreement.
Accordingly, the FAD is modified, and the agency shall comply with the
order below.
ORDER
On remand, the agency shall conduct a supplemental investigation on
whether the term of the settlement agreement that complainant's primary
function would be Education Coordinator for MAS was complied with by
complainant actually performing this function (as opposed to being given
the functional title only). The investigation shall gather sufficient
information to allow an independent determination on this matter.
The agency shall then give complainant a copy of the supplemental
investigation, with a written opportunity to respond. His response shall
be included in the supplemental investigation file. The agency shall then
issue a new final agency decision on whether it complied with the term
of the settlement agreement that complainant's primary function would
be Education Coordinator for MAS. The agency shall complete all these
actions within 120 calendar days after this decision becomes final.
A copy of the letter transmitting a copy of the supplemental investigation
to complainant, with an opportunity to respond, and the new final agency
decision, along with any other documentation showing compliance with the
above order must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K1208)
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 77960, Washington,
DC 20013. 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 (M1208)
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 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 (S0408)
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 (Z1008)
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
_June 11, 2010_________________
Date
2
01201001048
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120101048