0120180999
05-22-2018
Thad P,1 Complainant, v. Robert L. Wilkie, Jr., Secretary, Department of Veterans Affairs, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Thad P,1
Complainant,
v.
Robert L. Wilkie, Jr.,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120180999
Agency No. 200P06052011102452
DECISION
Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from a final decision (Decision) by the Agency dated November 16, 2017, 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 Staff Physician at the Agency's Section of General Internal Medicine, Jerry L. Pettis Medical Center facility in Loma Linda, California. Believing that the Agency subjected him to unlawful discrimination, Complainant contacted an Agency EEO Counselor to initiate the EEO complaint process. The dispute ended up before the United States District Court and on January 11, 2012, Complainant and the Agency entered into a settlement agreement to resolve the matter. The settlement agreement provided, in pertinent part, that the Agency would:
(1d) In consultation with [Complainant], create a committee charged with reviewing the individuals named to hiring and promotion panels so that the committee may provide its recommendation to the Medical Center Director as to whether the individuals named to those panels are appropriate, with discretion vested in the Medical Center Director as to whether to accept the recommendation of the committee;
(1e) Have panels instituted for evaluating applicant hiring and promotion which weigh the applicant by a ratio of 35% on objective criteria, such as the applicant's CV, and 65% on subjective criteria, such as the applicant's interview with the panel.
On October 12, 2017, Complainant notified the Agency that it was in breach of the settlement agreement, and requested that the Agency specifically implement its terms. Specifically, Complainant alleged that on August 24, 2017, he learned from the Section Chief of the Hospital Division that she was unaware of a committee that provides recommendations to the Medical Center Director regarding the appropriateness of those named to interview panels
In its November 16, 2017 FAD, the Agency concluded there was no breach of the agreement. Specifically, the Agency initially found that provisions 1d and 1e were void for lack of consideration but further found that, assuming they were not void, the Agency complied with the provisions from 2012 through 2015 but that because of difficulty in hiring Primary Care Providers the Agency began appointing Primary Care Physicians using direct hire authority. The Agency concluded that it had therefore substantially complied with the agreement.
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).
In the instant case, the Agency first argues that Complainant's appeal is untimely. We note, however, that the Decision was issued on November 16, 2017 and Complainant's appeal was received on December 4, 2017 with a timestamp showing a mailing on November 24, 2017. We therefore find the appeal to be timely-filed.
The Agency next argues that clauses 1d and e are void for lack of consideration. Generally, the adequacy or fairness of the consideration in a settlement agreement is not at issue, as long as some legal detriment is incurred as part of the bargain. However, when one of the contracting parties incurs no legal detriment, the settlement agreement will be set aside for lack of consideration. See MacNair v. U.S. Postal Serv., EEOC Appeal No. 01964653 (July 1, 1997); Juhola v. Dep't of the Army, EEOC Appeal No. 01934032 (June 30, 1994) (citing Terracina v. Dep't of Health and Human Serv., EEOC Request No. 05910888 (March 11, 1992). The Agency found that clauses 1d and e do not "provide [Complainant] a benefit that other employees are not already entitled [sic]. These provisions only set for procedures for having a committee and evaluating applicant hiring and promotion procedures." We find such an argument unpersuasive. We note that there is nothing in the record to suggest that other employees could get the Agency to consult with them to create a committee charged with reviewing the individuals named to hiring and promotion panels and providing the committee's recommendation to the Medical Center Director. As such, we find the relevant clauses provide sufficient consideration.
The Agency next argues that it substantially complied with the provisions for a few years, until it determined in 2015 that such a committee had an adverse impact on the Agency's ability to hire Primary Care Physicians. Complainant argues that two of the three of the individuals named to the committee told him they "met perhaps no more than two times addressing this issue" and on appeal, Complainant points out that the Agency hired a number of physicians during this period. We note, however, that the agreement did not specify how many times the committee would have to meet. Furthermore, according to the agreement, the committee was not required to meet every time a new physician was hired, its purpose was to review those named to hiring panels. Assuming the same individuals remained on the hiring panels through multiple hires, there would be no reason for the committee to meet until a new member was named to the panel. Complainant has not met his burden of showing that the hiring panels changed membership, necessitating repeated committee meetings. Since both parties agree that the committee did meet, and Complainant has not shown that, pursuant to the agreement, more committee meeting should have been held, we find that Complainant has not shown the Agency breached the agreement.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Decision.
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 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. 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.
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
May 22, 2018
__________________
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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