[Redacted], Crystal T., 1 Complainant,v.Dennis R. McDonough, Secretary of Veterans Affairs, U.S. Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Feb 22, 2021

Appeal No. 2021000314 (E.E.O.C. Feb. 22, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Crystal T.,1 Complainant, v. Dennis R. McDonough, Secretary of Veterans Affairs, U.S. Department of Veterans Affairs, Agency. Appeal No. 2021000314 Agency No. 200I-00509-2020102519 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from a final decision (FAD) by the Agency dated September 16, 2020, regarding its compliance with the terms of the settlement agreement into which the parties entered. The Agency found that the parties’ agreement was void and dismissed Complainant’s breach allegation. We accept the appeal. 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 was a former employee, who had worked as a Registered Nurse at the Agency’s Charlie Norwood VA Medical Center facility in Augusta, Georgia. On or around February 21, 2020, Complainant was issued a Notice of Termination, dated February 13, 2020, which was to be effective March 6, 2020. On February 22, 2020, Complainant filed a complaint with the United States Office of Special Counsel (OSC) asserting her termination was the result of unlawful retaliation. On March 5, 2020, the OSC stayed Complainant’s termination pending its processing of her complaint. Consequently, the termination was placed in abeyance by the Agency. 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. 2021000314 2 In addition, believing that the Agency subjected her to unlawful reprisal and disability discrimination, Complainant initiated contact with an Agency EEO counselor on February 24, 2020. She and Agency representatives engaged in mediation to resolve the matter. However, when the Agency Medical Director refused to sign the proposed mediated agreement, Complainant filed a formal EEO complaint on June 26, 2020, challenging both the February notice of termination and an earlier proficiency report. On July 17, 2020, following another period of settlement negotiations, Complainant and the Agency entered into a revised settlement agreement. The Agreement provided, in pertinent part, that in exchange for dismissing all her claims against the Agency:2 • The agency agrees to reinstate the Complainant as a registered nurse at the Charlie Norwood VA Medical Center in the Care in the Community (CITC) Department within 7 days of the signed settlement agreement. Complainant will be reinstated at Grade 1, Level 3, Step 9. She will not receive any back pay. • Within 7 days of the signed settlement agreement, complainant’s proficiency report to reflect an overall satisfactory rating. Complainant’s proficiency report will be corrected to reflect an overall satisfactory rating. The proficiency will reflect standards “not met” (1) under the Dimension Practice, (2) Ethics and Dimension Professional Development. • Performance sections. The termination decision notice dated February 13, 2020, SUBJ: Separation During Probation, will be rescinded effective the date of this signed settlement agreement. By letters to the Agency dated July 31, 2020 and August 3, 2020, Complainant alleged that the Agency was in breach of the settlement agreement. Specifically, Complainant alleged that the Agency failed to rescind the notice of termination or correct her rating. In fact, she asserted her employment with the Agency was terminated. She requested that the Agency specifically implement all of the Agreement terms. The record includes a July 30, 2020 letter from the Medical Center Director to Complainant, which attached the February 13, 2020 notice (the one subject to rescission under the July 17, 2020 Agreement), that states: On February 13, 2019, you were issued a decision letter for Separation during Probation as a result of my review and determination. This action was placed in abeyance pending a request to stay the action. The request for Stay has expired and your separation is effective July 31, 2020. 2 According to Complainant, her action pending with the OSC was dismissed based on the settlement agreement. 2021000314 3 In its FAD, the Agency acknowledged that the Agreement contained three provisions obligating the Agency to perform: 1) to reinstate Complainant, 2) to correct the proficiency report and 3) to rescind the termination notice dated February 13, 2020. The Agency conceded that “[a]fter the Agreement was signed, neither party took any action with respect to their obligations under the Agreement.” The Agency reasoned that the record shows Complainant was still an Agency employee at the time the settlement agreement was executed. The Agency determined “because Complainant had not been terminated prior to the execution of the Agreement, the Agency’s promise to reinstate Complainant is void for lack of consideration.” The Agency also stated there is no evidence that Complainant’s proficiency report was corrected and no evidence the termination decision, dated February 13, 2020, was rescinded. The Agency stated, “notwithstanding the Agency’s failure to provide evidence of compliance, the Agency noted Complainant “never withdrew her EEO complaint as required by provision 1a.” The Agency reasoned that Complainant’s consideration was the withdrawal of all pending informal and formal complaints. This appeal followed. On appeal, Complainant argues that the Agency has not complied with the material terms of the Agreement and noted that the Agreement does not in any way indicate that Complainant was required to take additional affirmative steps to comply with the waiver provision, other than signing the Agreement. 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 the Agreement was valid and binding on both parties. While the Agency attempts to argue that there was a lack of consideration because Complainant was still technically employed at the time the agreement was made due to the OSC stay order, there is no doubt that the Agency was fully aware of Complainant’s employment status at the time it executed the Agreement and agreed to rescind the termination notice and maintain Complainant’s employment as a registered nurse. Clearly, Complainant viewed the Agreement as providing her with a substantial benefit, including the rescission of the termination notice. In sum, we find the terms of the Agreement provided adequate consideration to both parties and should be considered as valid and binding. 2021000314 4 The Agreement required the Agency to rescind the February 13, 2020 termination notice, “reinstate” Complainant, and correct the proficiency report to reflect a satisfactory rating. The record shows that Complainant did not receive the benefit of any of these provisions. The Agency acknowledges that it did not rescind the termination notice. However, the fact that Complainant remained an employee at the time of the signing of the Agreement did not change the Agency’s obligation to rescind the February 2020 termination notice. Significantly, the Agency used that very termination notice as the basis for actually terminating Complainant in July 2020, approximately two weeks after entering into the settlement agreement with her. Clearly, the Agreement was premised on Complainant’s continuing employment. The decision to terminate Complainant indicates bad faith on the part of the Agency. In addition, it is undisputed that the Agency did not meet its obligation to correct the Proficiency Report, consistent with the intent of the Agreement. We therefore conclude that the Agency breached it obligations under the Agreement. Moreover, based on the Agency’s failure to rescind the notice of termination, we conclude that Complainant’s subsequent actual termination that was based on this notice must also be rescinded. The Agency argues that it was not obligated to comply with the Agreement because Complainant did not withdraw her underlying EEO complaint.3 However, we agree with Complainant’s argument that the Agreement did not require Complainant to take any additional steps to withdraw her complaint. Rather the Agreement states that “Complainant hereby voluntarily withdraws any and all pending informal and formal EEO complaints . . . any complaints before the Office of Special Counsel . . . ” [emphasis added]. We conclude that Complainant’s signature on the Agreement was sufficient to constitute a withdrawal of her EEO complaint. The Agency also asserts that a July 20, 2020 email, Complainant stated that she “would like to move forward with my formal complaint.” The Agency argues that this was evidence that Complainant did not withdraw her EEO complaint. However, we are unpersuaded by the Agency’s argument. The statement by Complainant needs to be examined in context. The remainder of the email shows that she was complaining about the Agency’s compliance with the parties’ agreement concerning her proficiency report and a fair interpretation of her email is that if the Agency’s non- compliance with the agreement could not be resolved she would like to reinstate her complaint. We note that Complainant was not represented by legal counsel at this time and may not have used language with the precision of a law-trained correspondent. 3 The Agency states that it continued to process the EEO complaint after the execution of the July 17, 2020 settlement agreement. The record shows that on July 30, 2020, the Agency issued Complainant a final decision dismissing her formal EEO complaint (Case No. 200I-0509- 2020102519), finding the claim concerning the proficiency report was untimely raised and the claim regarding the termination notice failed to state a claim because the termination had not been effectuated [at least at the time she filed the complaint] due to the OSC stay. 2021000314 5 CONCLUSION We find that the Agency breached the July 17, 2020 Settlement Agreement. Accordingly, we REVERSE the Agency’s decision concluding it did not breach the Agreement and REMAND the matter in accordance with the ORDER below. ORDER Within sixty (60) calendar days of the date this decision is issued: (1) The Agency shall fully comply with the terms of the July 17, 2020 settlement agreement, including rescinding the February 2020 notice of removal and correcting the proficiency report as required by the Agreement. (2) Complainant shall be retroactively reinstated to Agency employment to the position she occupied when she was terminated in July/August 2020 as a direct result of the Agency’s failure to comply with the terms of the Agreement, or to a substantially equivalent position, with back pay from the date of her termination until the date of her reinstatement or her decision to decline an offer of reinstatement. The Agency is further directed to submit a report of compliance in digital format as provided in the statement entitled "Implementation of the Commission's Decision." The report shall be submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Further, the report must include supporting documentation of the Agency's calculation of back pay, if any, and other benefits due Complainant, including evidence that the corrective action has been implemented. ATTORNEY'S FEES (H1019) If Complainant has been represented by an attorney (as defined by 29 C.F.R. § 1614.501(e)(1)(iii)), she/he 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 receipt of this decision. The Agency shall then process the claim for attorney's fees in accordance with 29 C.F.R. § 1614.501. 2021000314 6 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). 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 2021000314 7 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). 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. 2021000314 8 Such requests do not change 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 February 22, 2021 Date