0120151574
03-15-2016
Vernia M.,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
Vernia M.,1
Complainant,
v.
Robert McDonald,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120151574
Agency No. 200I-0673-2014101141
DECISION
Complainant filed a timely appeal with this Commission from a final decision by the Agency dated March 12, 2015, finding that it was in compliance with the terms of a February 6, 2014 settlement agreement. See 29 C.F.R. � 1614.402; 29 C.F.R. � 1614.504(b); and 29 C.F.R. � 1614.405.
BACKGROUND
On February 6, 2014, Complainant and the Agency entered into a settlement agreement to resolve a matter which had been pursued through the EEO complaint process. The February 6, 2014 settlement agreement provided, in pertinent part, that:
2. The Agency shall:
..........
d. The Aggrieved/Complainant will be given priority consideration for the 5 West Medical/Surgical Nurse Manager position when it becomes announced for recruitment in 2014. The position will be posted as an internal announcement. The selection official will be the Chief Nurse, Acute Care Nursing Service. Final approval for the selection will be given by the Associate Director of Patient Care/Nursing Services.2
By an undated letter to the Agency, Complainant alleged breach of provision 2.d.3 Specifically, Complainant alleged that the Agency did not give her priority consideration for the 5 West Medical/Surgical Nurse Manager position. Complainant further alleged "the denial of promotion led me to further believe that I am being retaliated against for filing a complaint to the EEOC opposing discrimination in the Nursing Service."
In its March 12, 2015 final decision, the Agency found no breach. Specifically, the Agency found that the EEO Manager stated that Complainant was given priority consideration for the 5 West Medical/Surgical Nurse Manager position. The EEO Manager stated that he and a named Human Resources Specialist explained to Complainant that "priority consideration" does not guarantee selection.
The record contains a copy of the EEO Manager's email response dated December 9, 2014, to the EEO investigator's questions concerning the instant settlement agreement. Therein, the EEO Manager stated that, in regard to the announcement for the subject position, the Associate Director of Patient Care/Nursing Service notified the Chief Nurse of Acute Care that Complainant was to receive priority consideration. The EEO Manager stated that the Chief Nurse was the selecting official for the subject position. The EEO Manager stated while the Associate Director "does not recall the exact date that she discussed with [selecting official]; however, she confirmed that it was prior to announcing the position."
The EEO Manager stated that he and a Human Resources Specialist "spoke in-depth with [Complainant] on several occasions to clarify the definition of priority consideration, and explained that having 'priority consideration' was not a guarantee of selection, but meant the individual ([Complainant], in this case) would be the first candidate to be interviewed and considered, and that the selecting official ([Chief Nurse of Acute Care]) had the option based on the results of [Complainant's] interview, to determine if he would interview other qualified candidates. If [selecting official] decided not to interview any other candidates, he could select [Complainant]." The record reflects that the selecting official gave Complainant prior consideration for the subject position. However, the selecting official decided to interview other candidates, and selected one candidate for the subject position.
The record also contains a copy of the selecting official's email dated October 17, 2014, to Complainant. Therein, the selecting official notified Complainant that on October 9, 2014, she was provided priority consideration for the subject position "based upon your own merits. On 10/15/14, you and I personally met to confirm that you will remain as an active candidate for the position, however, your qualifications will be considered along with other future candidates. This electronic message will serve as written confirmation of the priority consideration."
The record reflects that by email dated November 14, 2014, the selecting official notified Complainant that a candidate "whose background is more closely suited to our current needs" was selected for the subject position. The selecting official also informed Complainant that he would like to provide her an opportunity to discuss how she could improve her chances for future selections.
Complainant, on appeal, argues that she "was not referred for consideration before any other candidates as the list of qualified applicants were already given to the selecting official for consideration before I voice out my concern...I would like to clarify that [EEO Manager] and [Human Resources Specialist] did not speak to me that priority consideration is not a guarantee that I would have been selected for the position. I am already aware, I was expecting a legitimate reason for the rejection."
Further, Complainant argues that in his October 17, 2014 email, the selecting official indicated "that he was going to consider [Complainant] with other candidates, is a violation of the entire purpose of 'priority consideration'...at this point [selecting official] is either following the advice of people evidencing their discriminatory or retaliatory intent to cover-up and/or acting with it himself."
The instant appeal followed.
ANALYSIS AND FINDINGS
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).
After a careful review of the record, we find that the Agency did not breach provision 2.d. of the settlement agreement. Provision 2.d. provides an affirmative Agency obligation to assure that Complainant would be given priority consideration for the 5 West Medical/Surgical Nurse Manager position when it is announced for recruitment in 2014. The record reflects that the Agency provided priority consideration to Complainant for the subject position, but that after receiving priority consideration, Complainant was not selected for the subject position. We find nothing in the instant settlement agreement mandating Complainant's selection. As discussed above, the Agency is in compliance with this provision.
The Agency's finding of no breach of provision 2.d. of the February 6, 2014 settlement agreement is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0815)
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), 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, 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 (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
March 15, 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 The settlement agreement also provides for the Agency to conduct a formal fact-finding to review the interview/selection process for the Progressive Care Unit Nurse Manager and share the results with Complainant; to assure that should the results of the fact-finding warrant, administrative action would be taken against the Assistant Chief, Acute Nursing Service; and to assure that a task force would be chartered by the Patient Care Executive Board to standardize interviewing/selection processes across Nursing Services. These provisions are not at issue in the instant case.
3 The record reflects that the Agency received Complainant's letter alleging breach of the instant settlement agreement on November 21, 2014.
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