[Redacted], Drucilla Y., 1 Complainant,v.Denis R. McDonough, Secretary, Department of Veterans Affairs (VA), Agency.Download PDFEqual Employment Opportunity CommissionDec 2, 2021Appeal No. 2021003644 (E.E.O.C. Dec. 2, 2021) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Drucilla Y.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs (VA), Agency. Appeal No. 2021003644 Agency No. 2004-0658-2015102048 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from a final decision (FAD) by the Agency dated June 9, 2021, 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; 1614.405; and 1614.504(b). BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Voucher Examiner in the Office of Community Care in a VA Medical Center (VAMC) in Salem, Virginia. Believing that the Agency subjected her to unlawful discrimination, Complainant contacted an Agency EEO Counselor to initiate the EEO complaint process. On March 9, 2015 and then June 5, 2019, Complainant and the Agency entered into two separate settlement agreements to resolve Complainant’s concerns. 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. 2021003644 2 The March 9, 2015 settlement agreement provided, in pertinent part, that: 2. . . . [T]he Agency agrees [to:] 2.1 Acknowledge 430.25 hours of Family Medical Leave Act (FMLA) have been utilized by [Complainant] from July 1, 2014 through March 5, 2015. Acknowledge 49.75 hours of FMLA remain for [Complainant] to be utilized at her discretion from March 6, 2015 through June 30, 2015. 123 hours of requested Leave Without Pay (LWOP) will be approved by management up until March 5, 2015. Next, in relevant part, the June 5, 2019 agreement provided. 2. Agency’s Obligations: a. Within 90 days following the execution of this Agreement or the Complainant’s completion and provision of the appropriate vendor form, whichever shall later occur, pay the Complainant the lump sum of Five- Thousand Dollars ($5,000.00). b. Within 90 days following the execution of this Agreement or Complainant’s counsel’s completion and provision of the appropriate vendor form, whichever shall later occur, pay Complainant’s Counsel, … the lump sum of Seven Thousand Five Hundred Dollars ($7,500.00). In an email dated March 30, 2021 to management, Complainant stated that she has waited since July 2020 to have leave payroll issues resolved and that 8 hours of FMLA should be forwarded to her FMLA balance for FMLA certification beginning July 1, 2020 and ending June 30, 2021. Complainant alleged, since 2013, the Regional Administrative Officer (S1) and others have manipulated her FMLA reasonable accommodation requests, which provided negative results for her, such as charges of absence without leave and suspension. Subsequently, S1 stated that she had to submit information to the Financial Services Center to get Complainant’s FMLA corrected, but Complainant stated it should go through management and Human Resources. By letter to the Agency dated April 20, 2021, Complainant alleged that the Agency was in breach of the settlement agreements and requested that the Agency specifically implement its terms. In its June 19, 2021 FAD, the Agency found no breach. It concluded that Complainant’s allegations of denial of reasonable accommodation equated to claims of subsequent acts of discrimination, and that, in April 2021, Complainant filed an EEO complaint alleging denial of reasonable accommodation (FMLA). 2021003644 3 The instant appeal from Complainant followed. On appeal, Complainant reiterated that the Agency denied her reasonable accommodation (intermittent use of FMLA for certification for July 1, 2020 to June 30, 2021). She stated, on April 9, 2021, she filed an EEO complaint regarding denial of accommodation, which the Agency docketed as Agency No. 2004-741C- 2021103038. Complainant stated that the Agency completed the investigation in July 2021. Complainant stated that the Agency continues to fail to comply with settlement agreements or Commission Orders as to her settlements. ANALYSIS & FINDINGS 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 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. 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). In the instant case, the parties entered into settlement agreements in 2015 and 2019 regarding denial of reasonable accommodation. Here, Complainant alleges that the Agency denied her reasonable accommodation (intermittent use of FMLA for certification for July 1, 2020 to June 30, 2021). We agree with the Agency that Complainant’s allegations equate to claims of “subsequent acts of discrimination” and “shall be processed as separate [EEO] complaints,” rather than claims of breach. 29 C.F.R. § 1614.504(c). Complainant acknowledged, in April 2021, she filed a complaint regarding denial of reasonable accommodation and the Agency investigated the matter. The record shows she has pursued the matter as a separate complaint. CONCLUSION Accordingly, we AFFIRM the Agency's decision finding no breach of the settlement agreements. 2021003644 4 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). 2021003644 5 COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (S0610) 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 (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 December 2, 2021 Date Copy with citationCopy as parenthetical citation