0120162044
10-13-2016
Terese D.,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
Terese D.,1
Complainant,
v.
Robert McDonald,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120162044
Agency No. 200405122012103902
DECISION
Complainant filed a timely appeal with this Commission from a final decision (FAD) by the Agency dated June 23, 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
On January 7, 2016, Complainant and the Agency entered into a settlement agreement to resolve an EEO matter. The settlement agreement provided, in pertinent part, that the Agency will:
(1b) Restore one hundred (100) hours of sick leave to Complainant; and
(1c) Rescind Complainant's fourteen (14) day suspension, dated July 20, 2012, to include providing the corresponding back pay, and remove from her Official Personnel File (OPF) all documents related to the aforementioned suspension.
By letter to the Agency dated March 23, 2016, Complainant alleged that the Agency was in breach of the settlement agreement. Specifically, Complainant alleged that the Agency failed to remove all documentation reflecting the suspension from Complainant's OPF. The letter stated that "to date, "Complainant's OPF contains documentation reflecting the cancellation of the suspension as the result of a settlement." In an email communication to the Agency, Complainant's attorney stated that "the suspension dated 8/12/2012 is still in there [eOPF]." In addition, the attorney stated that Complainant told him that, as of April 22, 2016, she has not received her pay for the 14 days, she has not received her leave for the 14 days and she has not received the 100 hours of SL [sick leave]."
The Agency did not issue a decision. On June 6, 2016, Complainant filed a "Petition for Enforcement," after giving the Agency notice of her breach claim. On appeal, Complainant stated that she placed the agency on notice of her breach claims, but the Agency has yet to cure them.
The Agency did not explain why it had not removed the documentation reflecting the cancellation of the suspension from her OPF. In response to the petition for enforcement, the Agency stated that its compliance efforts are ongoing. The Agency stated that the back pay for the suspension is still being processed by the Agency and "DFAS" will not process the leave restoration or back pay until the restoration of leave has been processed and submitted by the Agency to "DFAS."
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 was valid and binding on both parties.
In this case, the Agreement required the Agency to restore 100 hours of sick leave, rescind the 14 day suspension and remove from her OPF all documents related to the aforementioned suspension. As of April 22, 2016, these actions were not completed. The Agency does not dispute that it failed to complete the steps required by the Agreement Paragraph 1(b) and 1(c).
Consequently, we find that the Agency has not met its burden of showing that it took any steps to comply with the requirement to remove documents from Complainant's personnel records consistent with the terms of the Agreement. It is not for us to construe the meaning or intention of the Agreement or its terms. Consequently, the plain meaning of provisions 1(b) and 1(c) of the settlement agreement supports Complainant's claim. Therefore, we find that the Agency breached the agreement when it did not restore the sick leave, rescind the suspension, and when Complainant's OPF continued to contain documentation reflecting the suspension, when the Agreement required the removal of any record of the suspension.
Where this Commission finds that the settlement agreement has been breached, the only two remedies available are specific performance of the terms of the agreement or reinstatement of the underlying EEO complaint at the point processing ceased. See 29 C.F.R. � 1614.504 (c). Complainant did not specify in her notice of breach or in her statement on appeal which remedy was preferred. We therefore give Complainant the option, in accordance with the ORDER below, of either reinstating her underlying EEO complaint, or specifically enforcing the terms of the Agreement. To the extent that Complainant has received any remedial relief, she would be required to return the relief before her complaint is reinstated.
Finally, to the extent that Complainant wishes to address new claims of discrimination and/or retaliation for the delay in processing, she should initiate EEO counseling with the Agency as those claims must be addressed in a separate complaint.
CONCLUSION
We find that the Agency breached the Agreement. Accordingly, we REVERSE the Agency's breach determination and REMAND the matter in accordance with the ORDER below.
ORDER
Within thirty (30) calendar days of the date of issuance of this decision, the Agency is ordered to notify Complainant of her option to either return to the status quo prior to the signing of the settlement agreement or to obtain specific performance of the agreement. The Agency shall also notify Complainant that she has fifteen (15) calendar days from the date of her receipt of the Agency's notice within which to notify the Agency either that she wishes to return to the status quo prior to the signing of the agreement or that she wishes to allow the terms of the agreement to stand. Complainant shall be notified that in order to return to the status quo ante, she must return any monetary benefits received pursuant to the agreement. The Agency shall determine its obligations due to Complainant, or return of consideration or benefits due from Complainant, within thirty (30) calendar days of the date this decision becomes final, and shall include such information in the notice to Complainant.
If Complainant elects specific performance, the Agency shall notify Complainant that the terms of the settlement agreement shall stand and the Agency will abide by all of the terms of the Agreement, including the non-disclosure provisions.
If Complainant elects to reinstate her EEO complaint, the Agency shall resume processing the EEO complaint from the point processing ceased. The Agency is ordered to process the remanded claims in accordance with 29 C.F.R. � 1614.108 et seq. The Agency shall acknowledge to the Complainant that it has received the remanded claims within thirty (30) calendar days of the date of issuance of this decision. The Agency shall issue to Complainant a copy of the investigative file and also shall notify Complainant of the appropriate rights within one hundred fifty (150) calendar days of the date of issuance of this decision, unless the matter is otherwise resolved prior to that time. If the Complainant requests a final decision without a hearing, the Agency shall issue a final decision within sixty (60) days of receipt of Complainant's request.
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. A copy of the Agency's letter of acknowledgment to Complainant and a copy of the notice that transmits the investigative file and notice of rights must be sent to the Compliance Officer as referenced below.
ATTORNEY'S FEES (H0610)
If Complainant has been represented by an attorney (as defined by 29 C.F.R. � 1614.501(e)(1)(iii)), he/she is entitled to an award of reasonable attorney's fees incurred in the processing of the complaint. 29 C.F.R. � 1614.501(e). The award of attorney's fees shall be paid by the Agency. The attorney shall submit a verified statement of fees to the Agency -- not to the Equal Employment Opportunity Commission, Office of Federal Operations -- within thirty (30) calendar days of this decision becoming final. The Agency shall then process the claim for attorney's fees in accordance with 29 C.F.R. � 1614.501.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610)
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 77960, Washington, DC 20013. 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 (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 (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.
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
October 13, 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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