0120161855
10-11-2016
Ron W.,1 Complainant, v. Robert McDonald, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Ron W.,1
Complainant,
v.
Robert McDonald,
Secretary,
Department of Veterans Affairs
(Veterans Health Administration),
Agency.
Appeal No. 0120161855
Agency No. 200J05502010104332
DECISION
Complainant appealed to this Commission from the Agency's April 6, 2016 decision 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 former employee in the Agency's Illiana Health Care System in Danville, Illinois.
Believing that the Agency subjected him to unlawful discrimination, Complainant contacted an EEO Counselor and filed a Formal Complaint of discrimination on September 7, 2010. On October 1, 2010, Complainant and the Agency resolved the matter by entering into a settlement agreement ("the Agreement").
By letter dated October 29, 2016, Complainant alleged that the Agency breached the Agreement, and requested that the Agency specifically implement its terms. As Complainant did not specify which provision of the Agreement was breached, the Agency identified Provisions 3 through 8 as relevant to Complainant's complaint. We have also included Provision 2 as it pertains to Complainant's repeated allegations in the record that the Agency violated the Health Insurance Portability and Accountability Act ("HIPPA").
Provisions 2 through 8, in relevant part provide:
2) The Complainant hereby waives and/or withdraws any and all actions, claims, complaints, appeals, grievances, and. proceedings of whatever nature in whatever forum, including but not limited to...pursuing Privacy / H1PAA issues, against the Agency, its officials, agents and/or employees, in their personal as well as their official capacities, which are now or hereafter may be asserted by the Complainant or on the Complainant's behalf, based on facts in existence as of the date of Complainant's execution of this Settlement Agreement... with the exception of any claims that may arise by reason of alleged breach of any terms of this Settlement Agreement.
3) The Complainant agrees to tender his resignation... within two (2) business days after the payment of monies. If the Complainant fails to...complete any required documentation within that time, then this Settlement agreement shall act as his immediate resignation.
4) The Complainant shall be placed on authorized absence (AA) upon execution of this Settlement Agreement.
5) The Agency agrees to pay the Complainant in the amount of thirty-five thousand dollars ($35,000.00), within thirty (30) days of the date of the Settlement Agreement.
6) The Agency (Human Resources Service) shall provide the Complainant with the appropriate forms and information that the Complainant may seek a lump sum payment from his Thrift Savings Plan (TSP), which is governed by TSP and Office of Personnel Management (OPM) rules and regulations and not VA.
7) The Agency shall respond to inquiries from outside employers regarding the Complainant that are directed to the Chief of Human Resources Service with its routine response concerning his position, dates of service, and salary. It is the responsibility of the Complainant to direct inquiries from outside employers to the Agency's Chief of Human Resources Service. The Agency is not responsible for responses to inquires made from outside employers to other employees concerning the Complainant. The Complainant's job performance and conduct is contained in his Official Personnel Folder (OPF).
8) The Complainant shall not seek nor accept employment with the VA Illiana Health Care System.
The alleged breach arose when, on October 29, 2015, Complainant learned that the Agency's Black Hills Health Care System, located in Fort Meade, South Dakota, did not hire him for a position he previously held for 23 years (March 1987 through October 2010) because "it is now closed to only 5 and 10 point Veterans since 2012." According to Complainant, the Agency was "wrong," because as a disabled veteran, he qualifies under the 2012 restriction. Complainant notes in the record that the harm from the Agency's decision not to hire him is ongoing because the stated rationale has prevented him from obtaining employment in his prior position at other Agency facilities. Complainant raised two claims related to the Agreement:
1. The Agency breached the Agreement; according to Complainant, under the Agreement the new veterans' restriction "does not apply" to him because the Agreement stated he "would be able to continue [his] federal career at another VA or federal job without further harassment, sexual harassment, and discrimination against Veterans, handicap or threats of workplace violence." and
2. The Agency discriminated against him on the basis of reprisal (prior EEO activity related to the instant complaint and for whistleblower activity, as Complainant reported "several million dollars in HIPPA violations" to the Agency's Office of the Inspector General) by denying him qualified veteran status, effectively preventing him from obtaining his prior position of 23 years.
The Agency determined that no breach occurred and that Complainant's reprisal allegations were outside the parameters of the Agreement, then advised Complainant that he may pursue his claims as a separate complaint of discrimination.
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 (Dec. 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 (Aug. 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. United States Postal Serv., EEOC Request No. 05910787 (Dec. 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); Complainant v. United States Postal Serv., EEOC Appeal No. 0120140143 (Feb. 20, 2014).
Claim 1
We find nothing in the Agreement promising Complainant a job; much less guaranteeing him the position he held for the prior 23 years. To the extent that Complainant interpreted the Agreement as mandating that the agency do so, such interpretation should have been reduced to writing as part of the Agreement, and in the absence of a writing cannot be enforced. Carter v. Dep't of the Army, EEOC Appeal No. 01985009 (Jul. 2, 1999) citing Jenkins-Nye v. General Serv. Admin., EEOC Appeal No. 019851903 (March 4, 1987). Therefore, Complainant cannot establish breach as a result of the Agency's decision not to hire him to his prior position.
Claim 2
Pursuant to 29 C.F.R. � 1614.504(c), allegations that subsequent acts of discrimination violate a settlement agreement shall be processed as separate complaints. If complainant intended to raise a claim of retaliation, complainant should contact an EEO Counselor pursuant to 29 C.F.R. � 1614.105. The Agency properly found that Complainant's allegations of reprisal in Claim 2 exceed the parameters of the settlement agreement.
Complainant's allegation of reprisal for his prior EEO activity, including entering the Agreement at issue in the instant complaint, involves an alleged discriminatory act that took place after the Agreement was signed, so it must be raised in a separate complaint. According to the Agency, Complainant has already done this through the Agency's Midwest District Office. His opportunity to file a formal complaint passed, however the Agency provided him with an extension in its Final Decision.
Complainant's allegation of reprisal for "whistleblower activity" for reporting that the Agency violated HIPPA privacy regulations cannot be adjudicated by this Commission. It appears from the record that Complainant is alleging a violation of the Whistleblower Protection Act. The Commission does not have jurisdiction over Whistleblower Protection Act claims. See Reavill v. Dep't of the Navy, EEOC Appeal No. 05950174 (July 19, 1996). As we cannot review or issue decisions on matters concerning HIPPA whistleblower protection, the Agency properly excluded this claim from Complainant's formal complaint.
Dissatisfaction with EEO processing
Allegations of dissatisfaction with an agency's processing of a previously filed or pending complaint cannot be the subject of an EEO complaint. See E.E.O.C. Management Directive for 29 C.F.R. Part 1614 Ch. 5, IV.A.12 and IV.D (Aug. 5, 2015); Morris v. Dep't of Def., EEOC Request No. 0520130316 (Aug. 27, 2013) When a complainant raises allegations of dissatisfaction regarding the processing of his or her pending complaint, the Agency official responsible for the quality of complaints processing must add a record of the complainant's concerns and any actions the Agency took to resolve the concerns, to the complaint file maintained on the underlying complaint. If no action was taken, the file must contain an explanation of the Agency's reason(s) for not taking any action. EEO MD-110, supra.
Complainant expressed his dissatisfaction with Agency's processing of his complaint, alleging, among other things, that the EEO Counselors used incorrect dates, provided incomplete information, and provided "no help" when Complainant called multiple times. Paragraph eight of the Agency's Final Decision, the subject of the instant appeal, provides Complainant with instructions, three different contact options to file a claim regarding dissatisfaction with the Agency's handling of his EEO Complaint. On appeal, Complainant provided no evidence that this was done; so it would be inappropriate for us to review these allegations.
CONCLUSION
Accordingly, the Agency's decision finding no breach of the Agreement is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)
The Commission may, in its discretion, reconsider the decision in this case if the Complainant or the Agency submits a written request containing arguments or evidence which 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 to reconsider, with supporting statement or brief, must be filed with the Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision or within twenty (20) calendar days of receipt of another party's timely request for reconsideration. 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). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. The requests may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. � 1614.604. The request or opposition must also include proof of service on the other party.
Failure to file within the time period will result in dismissal of your request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted with your 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 (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, Director
Office of Federal Operations
October 11, 2016
__________________
Date
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.
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