[Redacted], Freddie M., 1 Complainant,v.Dat Tran, Acting Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Feb 3, 2021

Appeal No. 2020004574 (E.E.O.C. Feb. 3, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Freddie M.,1 Complainant, v. Dat Tran, Acting Secretary, Department of Veterans Affairs, Agency. Appeal No. 2020004574 Agency No. 200H06422015104159 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 28, 2019, 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 compliance action, Complainant worked as an Industrial Hygienist, GS-0690-11/5, at the Agency’s Administrative Services Facilities Management, VA Medical Center facility in Philadelphia, Pennsylvania. On October 8, 2017, Complainant and the Agency entered into a settlement agreement to resolve an EEO matter. The settlement agreement provided, in pertinent part, that: 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. 2020004574 2 Section I: e. 2) Within seven (7) calendar days of the effective date of this settlement agreement, Complainant shall tender to the Chief of Human Resources of the [Medical Center] his written resignation retroactive to May 29, 2015. . . . f. 1) The Agency (VA) hereby agrees to pay Complainant $50,000.00 dollars as a lump sum payment. . . . The electronic funds transfer payment will be made payable to [Complainant at home address]. 2) [The Agency shall] Ensure upon receipt and normal processing of Complainant’s written resignation that [Complainant’s] VA eOPF shall be purged of all derogatory information within sixty (60) calendar days; this shall include the appropriate processing of applicable SF 52(s) and SF 50(s). . . . Section II. By execution of this Agreement, Complainant voluntarily and formally withdraws his Complaint . . . in its entirety, with prejudice. By letter to the Agency dated May 18, 2018, Complainant alleged that the Agency was in breach of the settlement agreement Section I, paragraph (f)(2), because he alleged that the Agency failed to purge all derogatory information from his official personnel records. Specifically, Complainant claimed that the entry on the last official copy of his SF-50 included an entry, “Nature of Action,” that indicated “Termination during Probationary / Trial Period.” On December 17, 2018, the Agency issued a decision on its compliance with the terms of the settlement agreement, concluding there was no evidence that it was in compliance with provision (f)(2) of the agreement. Based on this, the Agency found that it had not fully complied with the October 18, 2017 settlement agreement. The Agency issued Complainant an Election Form asking him to elect either specific performance of the agreement or the reinstatement of his underlying complaint. On September 18, 2019, Complainant elected specific performance. Thereafter, the Human Resources Manager retrieved Complainant’s eOPF (SF-50) from the Archives. The Human Resources Manager attested that his review showed no derogatory information and that the information in the personnel record (SF 50 and 52) showed Complainant’s resignation was voluntary. Accordingly, the Agency issued a new final decision on Complainant’s breach claim on October 28, 2019, concluding it was now in compliance with the settlement agreement and was terminating compliance monitoring. 2020004574 3 The instant appeal from Complainant followed. On appeal, Complainant restates his belief that the Agency failed to purge all the records. 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). In the instant case, in exchange for Complainant’s voluntary resignation retroactive to May 29, 2015, the Agency provided Complainant a lump sum payment of $50,000 and its promise that his eOPF would be purged of all derogatory information within sixty days. Because the Agency lacked proof of compliance, it acknowledged that Complainant was entitled to seek reinstatement of his complaint or specific performance. After Complainant elected specific performance of the requirement that Complainant’s VA eOPF be purged of derogatory information, the record shows that the Agency checked his eOPF record and attested that there was no derogatory information remaining. The record (SF 50 and SF 52) indicated that Complainant’s resignation was voluntary. Beyond his bare assertions, Complainant has provided no evidence to the contrary. As such, we conclude that the Agency has cured any breach that might have occurred in the past. CONCLUSION Accordingly, we AFFIRM the Agency’s no breach determination. 2020004574 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). 2020004574 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 February 3, 2021 Date