0120093332
11-20-2009
Susan M. Kolarich, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Susan M. Kolarich,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120093332
Agency No. 200J03292006101499
DECISION
Complainant filed a timely appeal with this Commission from a final
decision (FAD) by the agency dated July 2, 2009, finding that it was in
compliance with the terms of the February 22, 2005 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.
The settlement agreement provided, in pertinent part, that:
(1) Agency shall expunge the April 23, 2004 [Performance Action Plan]
and all related documents from the agency's personnel file(s) regarding
complainant.
By letters to the agency dated December 17, 2008 and March 23, 2009,
complainant alleged that the agency was in breach of the settlement
agreement, and requested that the agency specifically implement its terms.
Specifically, complainant alleged that the agency failed to expunge
negative comments found in complainant's performance appraisal dated
June 17, 2004.
In its May 29, 2009 determination, the agency determined that it had
breached the settlement agreement when it failed to expunge the negative
comments contained in complainant's Official Personnel File (OPF)
in complainant's June 17, 2004 performance appraisal. As a result,
the agency noted that complainant had requested specific performance.
As such, the agency noted that complainant and her representative can
be present to witness the removal of the documents in question pursuant
to the terms of the settlement agreement.
The record indicates that complainant and her representative met
with an official from the Human Resources Department (HR Official) on
June 12, 2009. Complainant indicated that during the meeting, the HR
Official had some of complainant's personnel records on her desk loose.
The HR Official pulled out documents which she stated were altered.
Complainant believed that there were more copies in the file of the
document than what the HR Official was showing complainant. Complainant
wanted to make sure that all the forms and copies of the June 17, 2004
performance appraisal were removed and destroyed. Complainant and her
representative asked for the rest of complainant's personnel records.
The HR Official indicated that the full OPF was not with her and that
the records were being ready for scanning. Complainant did not get an
opportunity to review the files to make sure all the references to the
April 2004 PAP had been removed.
In its July 2, 2009 FAD, the agency issued a new determination finding
that it had complied with the settlement agreement. The agency noted that
the meeting between complainant, her representative and the HR Official
occurred on June 12, 2009. At that time, the HR Official removed
the June 17, 2004 performance appraisal and gave it to complainant.
The agency stated that complainant refused to take the document and that
she would not sign a statement acknowledging the removal of the document.
Notwithstanding complainant's failure to take the document, the agency
found that it had satisfied the terms of the settlement agreement.
Complainant appealed noting the events of June 12, 2009. In addition,
complainant indicated that she was not permitted to check her complete
OPF to ensure that the agency had complied with the settlement agreement.
Therefore, complainant does not believe that the agency has complied
with the settlement agreement particularly since it took the agency some
4 years to attempt to comply with the agreement.
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. Department 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. Department 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. United States Postal
Service, 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 agency, on appeal, provided an
affidavit from an HR Official which stated that complainant's OPF was
reviewed and the agency "concluded that no documents were missing from
the physical file." The agency noted that complainant's file had been
converted into an electronic file. However, the HR Official did not
indicate that the April 23, 2004 PAP and all related documents were
expunged from complainant's OPF. We note that complainant was provided
with a copy of the June 17, 2004 performance appraisal. However,
complainant asserted that there are other copies of the appraisal with
references to the PAP within her OPF. Based on the agency's failure
to comply with the settlement agreement for over 4 years, the documents
from complainant's OPF found on the HR Official's desk in June 2009, and
the agency's failure to provide any evidence to support its determination
that it has complied with the settlement agreement, we find it reasonable
that complainant wishes to review her OPF to ensure that all references
to the PAP were removed. Therefore, we find that the agency has breached
the settlement agreement.
CONCLUSION
As such, we REVERSE the agency's determination and REMAND the matter in
accordance with the ORDER below.
ORDER (C0900)
The agency is ordered to take the following remedial action:
1. Within fifteen (15) calendar days, the agency shall contact complainant
to set up a time for her to review both the physical and electronic copy
of her OPF.
2. At the conclusion of the review period, complainant will inform the
agency in writing whether she found any references or documents regarding
the 2004 PAP.
3. If the complainant indicates that the OPF has a reference or document
regarding the 2004 PAP, the agency shall expunge the reference within
thirty (30) calendar days. Complainant will be given an additional time
to review her OPFs to ensure that all references have been expunged.
4. The agency shall complete all of the above actions within ninety (90)
calendar days from the date on which the decision becomes final.
The agency is further directed to submit a report of compliance, as
provided in the statement entitled "Implementation of the Commission's
Decision." The report shall include supporting documentation verifying
that the corrective action has been implemented.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0408)
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 submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. 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.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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), 9-18 (November 9, 1999). All requests
and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 77960,
Washington, DC 20013. 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 (R0408)
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.
RIGHT TO REQUEST COUNSEL (Z1008)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request from the Court that
the Court appoint an attorney to represent you and that the Court also
permit you to file the action without payment of fees, costs, or other
security. See Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. � 2000e et seq.; the Rehabilitation Act of 1973, as amended,
29 U.S.C. �� 791, 794(c). The grant or denial of the request is within
the sole discretion of the Court. Filing a request for an attorney with
the Court does not extend your time in which to file a civil action.
Both the request and the civil action must be filed within the time
limits as stated in the paragraph above ("Right to File A Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
November 20, 2009
__________________
Date
2
0120093332
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
5
0120093332