[Redacted], Dollie T, 1 Complainant,v.Robert Wilkie, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Jan 25, 2021

Appeal No. 2020004650 (E.E.O.C. Jan. 25, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Dollie T,1 Complainant, v. Robert Wilkie, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2020004650 Agency No. 200I-0675-2020103455 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from a final decision (FAD) by the Agency dated July 23, 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 Practice Registered Nurse, grade III, Step 7, at the Agency’s Medical Center facility in Orlando, Florida. Believing that the Agency subjected her to unlawful discrimination, Complainant contacted an Agency EEO Counselor to initiate the EEO complaint process. On May 13, 2020, Complainant and the Agency entered into a settlement agreement (Agreement) to resolve the matter. The Agreement provided, in pertinent part, that: (3a) The Complainant agrees she will be assigned to the Emergency Department in her current role as an APRN (Advanced Practice Registered Nurse), Grade: Ill Step 7 and her supervisor will be [name], Emergency Room Director (or designee). The tour of duty (TOD) will be as it is now with a seven (7) on - seven (7) off rotation with the understanding the schedule 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. 2020004650 2 is subject to change based on department and mission requirements. The change will be effective with the pay period beginning on 24 May 2020. (3b) The Complainant agrees to the Agency mitigating a letter of reprimand from results of a completed fact-finding to a letter of counseling to be issued to complainant no later than 22 May 2020. By letter to the Agency dated June 18, 2020, Complainant alleged that the Agency was in breach of the Agreement and requested that the Agency specifically implement its terms. Specifically, Complainant alleged that the Agency failed to mitigate the letter of reprimand to a letter of counseling and failed to fully reassign her to the Emergency Department (ED). Specifically, Complainant said that, while she reported for duty in the ED, her position of record remained in the Intensive Care Unit (ICU) and the Agency had failed to complete the necessary steps to make the reassignment permanent. In its July 23, 2020 FAD, the Agency concluded that it had substantially complied with the Agreement. Specifically, the Agency maintained that the Agency EEO Manager (EM): [P]rovided a copy of the detail memorandum dated January 14, 2020, confirming that [Complainant] was detailed to the Emergency Department beginning February 3, 2020 for a period of nine (90) days and being supervisor [sic] by [the Emergency Room Director]. [EM] indicated that in some of the HR systems [Complainant]’s assignment information was not properly updated because of a clerical error. [EM] indicated that the assignment would be backdated to May 24, 2020, and it did not affect her assignment or pay. [EM] further indicated that the proposed reprimand was mitigated to a written counseling. The Agency concluded there was no breach of the Agreement. The instant appeal from Complainant 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). 2020004650 3 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, we note that the Agency’s argument is unclear and does not contain supportive evidence in the record. As noted above, the FAD contends that EM provided a copy of a detail memorandum dated January 14, 2020, confirming that Complainant had been detailed to the Emergency Department beginning February 3, 2020. We note, however, that the record contains no copy of either the detail memorandum or other comment from EM, nor does it contain an official personnel record showing the detail and the dates of such a detail. Furthermore, since the Agreement was dated May 13, 2020, and it states that the effective date of Complainant’s transfer to the ED would be May 24, 2020, it is not clear how a memorandum dated January 14, 2020, is relevant to the allegation of breach or how it amounts to evidence showing that Complainant was detailed pursuant to the Agreement as the Agency contends. Perhaps the FAD erred with regard to the dates of the detail memorandum but since the evidence provided by EM and relied on by the Agency has not been made part of the record, we can only conclude that the January 2020 memorandum is inapplicable to the breach allegation and that the Agency has failed to establish that it complied with the Agreement. We next note that, on appeal, Complainant argues that, with regard to the written counseling, an email from Complainant’s former ICU supervisor (S) shows that the proposed reprimand was going to be reduced to a letter of counseling even if Complainant had not entered into an Agreement with the Agency and hence Complainant received no consideration for entering into the Agreement. Complainant points out that: On July 6, 2020, . . . [S] sent [Complainant] an email, stating: “The last fact finding is complete and it does not change the mediated settlement . . . . The details in the counseling are what the fact finding suggested but as the results were not strongly supported by objective evidence this counseling letter is not strictly a discipline. Complainant further argues that she entered into the Agreement based on the Agency’s representation “that it would be issuing a reprimand to her based on the results of a fact finding conducted in March 20192. This representation induced Complainant to accept “to accept a letter of counseling in lieu of the threatened reprimand.” Complainant argues that S’s July 6, 2020 email suggests that the reprimand was mitigated to a letter of counseling based on additional fact-finding that occurred after she entered the Agreement, while the Agreement stipulated that the letter of counseling would be based on existing fact-finding that occurred in March 2020, prior to the Agreement. Complainant states that she “did not agree to a letter of counseling related to the outcome of [additional, post Agreement] fact-finding. As such, the letter of counseling issued by [S] is not only untimely but is substantively and materially different than the agreed-to-letter of counseling in the [May 2020] Settlement Agreement.” 2 Complainant appears to be referring to March 2020. 2020004650 4 While we agree that the Agreement stipulated that the letter of counseling would be based on “completed fact-finding” and not on additional post-Agreement fact-finding we are unpersuaded by Complainant’s argument that the date of the fact-finding is material. Complainant wanted the reprimand mitigated to a letter of counseling, and that was done. With regard to S’s July 2020 email, we find that Complainant’s argument that such an email shows that the reprimand would have been mitigated to a letter of counseling even absent the Agreement and that she therefore received no consideration, to be speculative. We note, however, that because the Agency has not supported its contention that Complainant was assigned to the ED pursuant to the Agreement, it has failed to establish that no breach occurred. We note that in Ericson v. Department of the Army, EEOC Request No. 05920623 (January 14, 1993), the Commission stated that “the agency has the burden of providing evidence and/or proof to support its final decisions.” See also Gens v. Department of Defense, EEOC Request No. 05910837 (January 31, 1992) and this the Agency has not done. Where we find a breach, the Commission has two options to remedy the situation: 1) reinstate the complaint or 2) order specific performance. Complainant has requested that the complaint be reinstated. We note that if a complaint is reinstated for further processing, the parties must be returned to the status quo at the time that the parties entered into the settlement agreement. This would require that Complainant return or forego any benefits received pursuant to the settlement agreement. See, e.g., Armour v. Dep't of Defense, EEOC Appeal No. 01965593 (June 24, 1997). CONCLUSION Accordingly, we find that the Agency breached the settlement agreement and the matter is REMANDED to the Agency for further processing as set forth in the ORDER below. ORDER (E0618) The Agency is ordered to reinstate Complainant’s underlying EEO complaint and process the underlying claims in accordance with 29 C.F.R. § 1614.108 et seq. The Agency shall acknowledge to the Complainant that it will resume processing her complaint within thirty (30) calendar days of the date this decision was issued. Complainant shall return or forego any benefits received pursuant to the settlement agreement. The Agency shall issue to Complainant a copy of the investigative file and also shall notify Complainant of the appropriate rights within one hundred fifty (150) calendar days of the date this decision was issued, unless the matter is otherwise resolved prior to that time. If Complainant requests a final decision without a hearing, the Agency shall issue a final decision within sixty (60) days of receipt of Complainant’s request. In the alternative, Complainant may respond to the Agency’s acknowledgement that it will resume processing her complaint and indicate that she wishes to preserve the settlement agreement. She must do so within ten (10)) calendar days of receipt of the Agency’s acknowledgement. If she does so, the Agency will abide by the terms of the Agreement and will not resume the processing of her EEO complaint. 2020004650 5 ATTORNEY'S FEES (H1016) If Complainant has been represented by an attorney (as defined by 29 C.F.R. § 1614.501(e)(1)(iii)), 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 the date this decision was issued. 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 (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. 2020004650 6 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). 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). 2020004650 7 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 January 25, 2021 Date