Tascia P.,1 Complainant,v.Robert Wilkie, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Dec 18, 2019

2019005062 (E.E.O.C. Dec. 18, 2019)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Tascia P.,1
Complainant,

v.

Robert Wilkie,
Secretary,
Department of Veterans Affairs,
Agency.

Appeal No. 2019005062

Agency No. 200J-0585-2911199143

DECISION

Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC
or Commission) from a final decision (FAD) by the Agency dated May 31, 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 a Registered
Nurse at the Agency’s Oscar G. Johnson VAMC facility in Iron Mountain, Michigan.

On September 15, 2011, Complainant and the Agency entered into a settlement agreement to
resolve her pending EEO matters.2 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.
2 We note that the record includes an Order of Dismissal issued in EEOC Hearing No. 443-2011-
00185X, due to the September 2011 settlement of Complainant’s complaint. The complaint
number listed was 200J-0585-2011100143. In its Breach Determination, the Agency referenced
Complainant’s case number as 200J-0585-2911199143. We further note that the Agency
employs at least two employees with the same first and last name as Complainant.
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(1) By execution of this agreement, Aggrieved Person [Complainant]
voluntarily withdraws all pending informal and formal EEO complaints,
including but not limited to EEO Case No. 200J-0585-2011100143.

(2) The Agency shall reassign the Aggrieved Person to the Health Promotion
Disease Prevention (HPDP) Coordinator position as a 0.5 FTEE
Registered Nurse. This assignment is under Nursing and Patient Care
Service, VA Oscar G. Johnson Medical Center, Iron Mountain, in Primary
Care. The Aggrieved Person’s grade and step of AD/Liv3/Step 8 will not
be affected. The effective date for reassignment is October 23, 2011.
Office location is yet to be determined.

(4b) This agreement constitutes the entire understanding between the parties.
There are no other terms or commitments, either oral or written, to this
agreement except those specified herein.

Although Complainant questioned whether the half-time position would provide her enough time
to perform her duties, she signed the Agreement on September 15, 2011.

By letter to the Agency dated April 10, 2019, Complainant alleged that the Agency breached the
Agreement when the Agency assigned her collaborative duties that were not included within the
settlement agreement.3 In addition, Complainant stated that her title should be Program Manager,
not “Coordinator.” She noted that, by November of 2011 (which was after the date of the
execution of the subject agreement), Complainant received “NCP certification as Agency Health
Promotion Disease Prevention Program Manager.” Complainant acknowledged that she was
provided a Functional Statement in March of 2018. She stated that, had she been provided the
statement sooner, she would have been better positioned to perform her job, because the tasks
were finally defined. She requested that the Agency specifically implement the terms of the
agreement, by recognizing that her title should be Program Manager.

The Agency Decision

The Agency found that it complied with provision 2 of the settlement agreement. The Agency
reasoned that the reassignment to the position was effective as October 2011 and was reflected in
the subsequent proficiency report. The Agency explained that management did not complete the
SF-50 until March 25, 2012, because there had been no change in Complainant’s pay status.

3 She also questioned why the Agency offered her a “0.5 FTE” position (for a fully funded full-
time position). Next, she stated that the Director was not following the Handbook 1120.02 for
Health Promotion Disease Prevention, which she included as an attachment to her breach claim.
She questioned why the Director changed her response to her Official Annual Performance
Measure Report, in which she responded that she was not allocated enough time to support the
Health Promotion Disease Prevention Program Manager position.
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Next, the Agency stated that the issue of collaborative duties was not addressed in the settlement
agreement.

This appeal followed. On appeal, Complainant asserts that the Agency refuses to recognize
Complainant’s title as Program Manager and that Complainant was certified, as a Program
Manager in November of 2011. She conceded, however, that the Agreement does not mention a
functional statement, but she asserts that she should have been provided with one sooner.

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 the Agreement to be valid and binding on both parties.

In the instant case, the Agreement required the Agency to reassign Complainant to the Health
Promotion Prevention (HPDP) Coordinator position as a 0.5 FTEE Registered Nurse, with an
effective date for reassignment as October 23, 2011. The Agency was able to show it complied
with this requirement. The proficiency report for the 2011 to 2012 period showed Complainant’s
new role. The specific title referenced in the Agreement was Coordinator. The Agreement did
not address collaborative duties or require that Complainant be issued a Functional Statement.

For all these reasons, we find that Complainant has not shown that the Agency breached the
Agreement.

CONCLUSION

Accordingly, we AFFIRM the Agency’s Breach Determination.
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STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
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. A party
shall have twenty (20) calendar days of receipt of another party’s timely request for
reconsideration in 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). All requests and arguments must be submitted to the
Director, Office of Federal Operations, Equal Employment Opportunity Commission.
Complainant’s request 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
agency’s request must be submitted in digital format via the EEOC’s Federal Sector EEO Portal
(FedSEP). See 29 C.F.R. § 1614.403(g). 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.
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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 18, 2019
Date