[Redacted], Ceola K., 1 Complainant,v.Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency.Download PDFEqual Employment Opportunity CommissionApr 22, 2021Appeal No. 2021001089 (E.E.O.C. Apr. 22, 2021) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Ceola K.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2021001089 Agency No. 2003-0674-2020102744 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from a final decision (FAD) by the Agency dated October 30, 2020, 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 complaint, Complainant worked as an Advanced Medical Support Assistant, GS-6, at the Agency’s Medical Center in Temple, Texas. Believing that the Agency subjected her to unlawful discrimination, Complainant contacted an Agency EEO Counselor to initiate the EEO complaint process. On April 9, 2020, Complainant and the Agency entered into a settlement agreement to resolve the matter. The settlement agreement (Agreement) provided, in pertinent part, that: (2) [Name omitted], Supervisory Medical Support Assistant, Medical Service, Austin Outpatient Clinic, Central Texas Health Care System, (CTVHCS), Austin, Texas will complete VA 3890243 VRE Lesbian, Gay Bisexual and Transgender (LGBT) Workplace and Counseling Considerations Training 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. 2021001089 2 located in Talent Management Service (TMS) within two hundred and forty (240) calendar days from the date of this signed Agreement. . . . (4) Further Understandings. . . . g. This agreement shall be made part of the record of Complainant’s above-referenced discrimination complaint(s) and remains enforceable under the jurisdiction of the EEOC following dismissal of this case. By letter to the Agency dated August 11, 2020, and time-stamped as having been received on September 23, 2020, Complainant alleged that the Agency was in breach of the Agreement and asked that the Agency implement its terms. Specifically, Complainant alleged that the Agency failed to provide her with a signed copy of the Agreement. In its October 30, 2020 FAD, the Agency concluded it had not breached the Agreement and submitted evidence showing that the Supervisory Medical Support Assistant named in the Agreement had received the training required by the Agreement. The instant 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). Here, the Agency appears to have misunderstood Complainant’s breach allegation. A review of Complainant’s August 11, 2020 correspondence indicates that Complainant was alleging that she has tried on multiple occasions to obtain a signed copy of the Agreement but has not received any response from the Agency. That correspondence does not address the training referenced in clause 2 of the Agreement. As such, the Agency has not addressed Complainant’s breach allegation. 2021001089 3 We conclude that Complainant has not established a breach of the agreement by the Agency. There is no provision in the agreement relating to providing her a signed copy of the agreement. Rather, the language of the agreement shows that the signed copy was to be placed in the record of her settled complaint(s), where it was to remain. That being said, we find that Complainant is entitled to a copy of the signed agreement as it is part of the official record of her settled complaint. As the Agency has provided no reason for denying her the signed copy, we will order it to provide it to her. As a final matter, we note that Complainant also contends that since the execution of the settlement, she has been subjected to retaliation and harassment. In correspondence dated December 12, 2020 and March 12, 2021, Complainant states that she wishes to “amend” her complaint to add new allegations. However, because Complainant withdrew her original complaint in consideration for the Agency’s obligation to provide training to the Supervisory Medical Support Assistant, there is currently no complaint for Complainant to amend. Furthermore, the Commission has held that claims of further discrimination and reprisal should be processed as a new, separate complaint, rather than as a breach allegation. See Bindal v. Department of Veterans Affairs, EEOC Request No. 05900225 (August 9, 1990). Therefore, if Complainant wishes to pursue these claims through the EEO process, rather than amend her complaint, she must contact an Agency EEO Counselor to initiate a new complaint on these matters. CONCLUSION We AFFIRM the Agency’s determination that Complainant has failed to establish that it has not complied with the terms of the settlement agreement. However, in the interest of fairness, we direct the Agency to provide Complainant with a signed copy of the settlement agreement as indicated in the Order below. ORDER Within thirty (30) days of this decision, the Agency is ordered to provide Complainant with a copy of the signed Agreement. IMPLEMENTATION OF THE COMMISSION’S DECISION (K0719) 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 in the digital format required by the Commission, and submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). 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). 2021001089 4 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. Failure by an agency to either file a compliance report or implement any of the orders set forth in this decision, without good cause shown, may result in the referral of this matter to the Office of Special Counsel pursuant to 29 C.F.R. § 1614.503(f) for enforcement by that agency. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within which to submit a brief or statement in opposition. 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). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). 2021001089 5 Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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 (R0610) 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 (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 April 22, 2021 Date Copy with citationCopy as parenthetical citation