0120162269
11-03-2016
Sammy R.,1 Complainant, v. Robert McDonald, Secretary, Department of Veterans Affairs, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Sammy R.,1
Complainant,
v.
Robert McDonald,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120162269
Agency No. 200305542015105595
DECISION
Complainant filed a timely appeal with this Commission from a final decision (FAD) by the Agency dated May 26, 2016, 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 a Housekeeping Aide at the Agency's Buckley Clinic, Eastern Colorado Health Care System facility, in Denver, Colorado.
On November 9, 2015, Complainant and the Agency entered into a settlement agreement to resolve an EEO matter. The settlement agreement provided, in pertinent part, that:
(2a) The Agency agrees to rescind the Aggrieved Person/Complainant's ninety-day Evaluation, issued October 13, 2015, within thirty (30) days of the last signature date.
(2c) The Agency agrees to change time card designations of any (Without Pay) Absent Without Leave (AWOL), charged to the Aggrieved Person/Complainant during the period of time commencing from his employment start date with the Agency to the last signature date of this Agreement, to (Without Pay) Leave Without Pay (LWOP) within ninety (90) days of the last signature date.
(2e) The Agency agrees to place the Aggrieved Person / Complainant on LWOP in lieu of sick leave to cover the periods of time relating to the Aggrieved Person / Complainant attending classes or programs to address existing medical conditions, if and when he presents documentation of acceptance into classes, or programs, to address such existing medical conditions. The Agency agrees to complete this term of the Agreement within six (6) months of the last signature date so long as the Aggrieved Person / Complainant provides the Agency said documentation on or before thirty (30) days prior to expiration of the six-month period.
(4f) If a binding determination is made that any term(s) of this Agreement is/are unenforceable, such unenforceability shall not affect any other provision of this Agreement, and the remaining terms of this Agreement shall, unless prohibited by law, remain effective as if such unenforceable provision(s) was / were never contained herein.
The last signatory on the Agreement signed the Agreement on November 9, 2015. The term of the Agreement for paragraph 2a and 2c extended from the start of Complainant's employment to November 9, 2015. The Agency did not complete the rescission of the 90 day evaluation until January 11, 2016. The Agency stated that EMS, as a Service was not made aware of the requirement. Once the requirement was communicated, the Agency rescinded the 90 day evaluation.
In addition, the record includes a February 4, 2016 compliance report, which stated that the terms of paragraph 2c were completed and that the time and attendance had been corrected. With regard to paragraph 2e, the report stated "We will comply, once the employee complies."
On January 6, 2016, the Agency issued Complainant a termination letter. The letter specified the reason for termination was that Complainant did not meet the requirements for retention, because he had been absent without approval from December 28-31, 2015 and on January 1, 2016.2
By letter to the Agency dated March 16, 2016, Complainant alleged that the Agency was in breach of the settlement agreement. Specifically, Complainant alleged that the Agency "gave him a letter of termination for a list of AWOL which should've been LWOP for hospital stay in accordance with the agreement;" and, on March 14, 2016, he was "given a fact finder hearing date for the same thing."
In its May 26, 2016 FAD, the Agency concluded that it did not breach the Agreement. The Agency reasoned that the dates of December 28-31, 2015 and January 2016 were outside of the scope of the time period specified in the agreement. Consequently, the Agency determined that the Agency had not breached the Agreement when it issued a letter of termination on January 6, 2016.
This appeal followed. Complainant did not submit a brief in support of his appeal.
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).
We find that the Agreement is valid and binding on both parties. While we agree that the wording of the Agreement could have been clearer, it is not our role to decipher the intention of the parties.
In the instant case, the Agreement required the Agency to rescind the 90 day evaluation and change the time card designations for any AWOL that had been charged to Complainant, from Complainant's start date, up to the effective date of the Agreement. To the extent there had been a breach, the Agency cured the breach. The record shows that both of the terms were completed.
We recognize that the Agreement also contained a requirement that the Agency permit Complainant to be placed on Leave Without Pay, in lieu of sick leave, to cover any periods of time for classes, but this requirement was contingent on the Complainant providing the Agency with documentation of his acceptance into certain classes or programs. If Complainant fails to comply, the Agency has no duty to allow the agreed upon LWOP. It does not appear that the documentation was provided. Further, to the extent that any of the provisions would be deemed unenforceable, the parties agreed that the remaining terms would remain in effect, unless prohibited by law. Our review shows that the Agency complied with the terms of the terms of the Agreement to the extent feasible.
For all of these reasons, we find that Complainant failed to show that the Agency breached the Agreement.
CONCLUSION
Accordingly, we AFFIRM the Agency's Final Decision, finding no breach.
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 tends 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's signature
Carlton M. Hadden, Director
Office of Federal Operations
November 3, 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.
2 We note that January 1, 2016 was an official federal holiday.
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