[Redacted], Roxane C., 1 Complainant,v.Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Dec 21, 2021

Appeal No. 2021001573 (E.E.O.C. Dec. 21, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Roxane C.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2021001573 Agency No. 200I-0508-2019103825 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from a final decision (FAD) by the Agency dated November 9, 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 a Clinical Social Worker, GS-12, at the Agency’s Mental Health, VAMC facility in Decatur, Georgia. Believing that the Agency subjected her to unlawful discrimination, Complainant contacted an Agency EEO Counselor to initiate the EEO complaint process. On November 4, 2019, Complainant and the Agency entered into a settlement agreement to resolve the matter. The settlement agreement provided, in pertinent part, that: (2) The Agency agrees to restore 117 hours of Annual Leave, 44.30 hours of Sick Leave, 7.30 hours of Comp Time, 4 hours of Donated leave and 2 hours of Leave without Pay to the Aggrieved Person/Complainant. The Agency shall submit the appropriate paperwork to Defense Finance and 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. 2021001573 2 Accounting Service (DFAS) within sixty (60) calendar days from the date of the last signature on this Settlement Agreement. In its FAD, the Agency wrote that, “[o]n October 6, 2020, we received your breach of settlement agreement allegation. You allege that the agency breached provision 2 of the settlement agreement.” The record does not include a copy of Complainant’s October 6 breach allegation and did not specify exactly how Complainant alleged that provision 2 had been breached. The FAD concluded that the Agency was not in breach of the settlement agreement (Agreement), but found that there had been a mutual mistake made by the parties at the time the Agreement was signed. The Agency noted that: [T]here was a mutual mistake between both parties with respect to the availability of restored donated leave. . . . That is, restored donated leave is only usable during the period it was donated for. Once outside that period, the leave is no longer allowed to be used. The employee may have a positive balance, but it cannot be utilized based on the rules. As such, the Agency concluded it had not breached the terms of the settlement 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). 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 record is incomplete and so we are unable to determine if a breach occurred. The record does not contain a copy of Complainant’s October 6, 2020 breach allegation. As noted above, according to the FAD, Complainant alleged generally that provision 2 of the Agreement had been breached. On appeal, the Agency is more specific regarding Complainant’s allegation, stating that Complainant alleged that the Agency failed to “apply full leave restoration to the Appellant in a way in which she could use it.” 2021001573 3 Because Complainant’s October 6, 2020 breach allegation has not been made part of the record, we are unable to determine exactly how Complainant believes the Agreement has been breached and thus unable to make a determination regarding the validity of such an allegation. In addition to the missing breach allegation, we note that the record is similarly missing the evidence relied on by the Agency in its FAD. The FAD notes that: On October 16, 2020, we requested additional information from the agency to show that they had complied with the settlement agreement. On October 21, 2020, Ms. [name omitted], EEO Manager, submitted a response indicating that the agency had complied with provision 2 of the agreement. Specifically, [the EEO Manager] submitted a leave statement showing that the leave was restored. [The EEO Manager] also submitted copies of email communication, confirming the restoration of the leave. However, [the EEO Manager] advised that donated leave, while restored, was only available to be used during the period it was donated for. Once it was outside that period, the leave was no longer allowed to be used. Therefore, you were unable to utilize the restored donated leave. The record, however, does not contain a signed affidavit from the EEO Manager stating the above, nor does it include evidence supporting such an assertion by the EEO Manager that the leave was restored. On appeal, Complainant has submitted an internal Agency email dated November 13, 2020, following receipt of the FAD stating that it “does not include the other type of leave that restored [sic] that I am not being allowed to use.” Because Complainant’s initial October 6, 2020 breach allegation has not been made part of the record, we cannot determine whether she mentioned such “other type of leave” in her breach allegation. Complainant further states on appeal that the Agency payroll department: [R]estored most of the leave that should have been restored at [sic] Authorized Absence, which is how Mr. [name omitted] was instructed to restore my leave and [he] confirmed in Yellow Highlight [capitalization in original] in correspondence with Ms. [name omitted] on April 8, 2020, he had done. If you look at my VATAS leave sheet I sent you, you will see that Mr. [name omitted] did to restore any of my EEO settlement agreement restored leave under Authorized Absence, which would have allowed me to utilize my restored leave anytime. Instead [he] restored most of my restored leave under Donated Leave or Advance Leave; none of which I have been allowed to utilize. Therefore, a large portion of my leave in essence was not restored. A review of the Agreement shows that it references only four hours of donated leave, leave which the Agency agrees cannot be used. If, pursuant to the Agreement, Complainant is merely deprived of a total of four hours of unusable leave, we agree that the Agency has substantially complied with the Agreement and that the unusable nature of restored donated leave was a case 2021001573 4 of “mutual mistake” by the parties. If, however, other leave was restored to her leave balance, but converted to unusable “donated leave” or “advanced leave” instead of being restored as other, usable, forms of leave, that is not a matter of “mutual mistake” since Complainant did not agree to have other leave restored as unusable “donated leave,” or “advanced leave,” she only agreed to have four hours of donated leave restored. We note that Complainant has included internal emails indicating she had at various times 35 hours of donated leave (see email dated September 11, 2020), and 65:31 hours of donated leave (see email dated September 2, 2020). This is significantly more than the four hours referenced in the Agreement. However, since the Agency did not include the EEO Manager’s documentation regarding the restoration of Complainant’s leave we are unable to determine if Complainant is correct in stating that some of the restored leave was restored as unusable “donated leave” or was restored as usable leave. 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). Given the above we find that additional development of the record is required before we can make a determination regarding Complainant’s breach allegation. Finally, with regard to the Agency’s argument that Complainant’s breach allegation is untimely, we see no basis for such a finding since the record does not reveal when Complainant should have known a breach occurred. We therefore find that the breach allegation was timely made. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we VACATE the FAD and REMAND the matter to the Agency to supplement the record. ORDER Within forty (40) calendar days from the date this decision is issued, the Agency shall supplement the record with the following: 1. A copy of Complainant’s October 6, 2020 breach allegation. 2. A signed affidavit by the EEO Manager regarding whether or not Complainant’s leave was restored (including what type of leave), and specifically addressing whether or not leave that was not previously categorized as the four hours of donated leave was restored as donated leave, or otherwise restored in a manner that made it unusable to Complainant. 2021001573 5 3. If leave that was not donated leave was restored as donated leave or was restored as any other form of leave unusable by Complainant, the affidavit should explain why the restored leave was not restored as its original type of leave. The affidavit shall include the documentation supporting its claims. Such documentation, rather than consisting of a list of numbers and acronyms, shall be in a form that is comprehensible to those not familiar with Agency payroll records, or failing that, shall include an explanation describing in plain English what the records mean. 4. The Agency shall issue a new final decision, with appeal rights to the Commission, regarding whether the Agency is in compliance with the settlement agreement at issue. 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. 2021001573 6 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). 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. 2021001573 7 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 21, 2021 Date