0120142463
12-05-2014
Complainant, v. Robert McDonald, Secretary, Department of Veterans Affairs, Agency.
Complainant,
v.
Robert McDonald,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120142463
Agency No. 200305022013103780
DECISION
Complainant filed an appeal with this Commission from a final decision (FAD) by the Agency dated August 21, 2014, 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 Practical Nurse at the Agency's Medical Center in Alexandria, Louisiana.
Complainant was issued a fourteen-day suspension and, on July 10, 2013, filed a grievance with the assistance of her Union. On July 11, 2013, Complainant contacted the Agency's EEO Counselor alleging she was subjected to race-based discrimination when she was issued the fourteen day suspension. Pursuant to the grievance, the Union, Complainant and the Agency agreed upon terms to settle of the matter on August 1, 2013. However, the record shows that settlement agreement was not signed by all the parties until September 27, 2013. The settlement agreement provided, in pertinent part, that:
(II) By August 30, 2013, the Agency will remove the fourteen day suspension action from [Complainant's] electronic Official Personnel Folder (eOPF). A Letter of Reprimand, which will remain in [Complainant's] eOPF for a period of three years, will be issued in place of the fourteen day suspension.
. . .
(III)(b) The Union understands that, with the exception of any claims that might arise by reason of the alleged breach of any term of this settlement agreement, by signing this settlement agreement, waives any and all rights to further or future processing of the matters covered by this settlement agreement in any forum, administrative or judicial, and releases and discharges the United States of America, the Agency, its officials, its agents and its employees, in both their official and individual capacities, from any and all liability, claims or causes of action, resulting from or relating to, in any manner whatsoever, the subject matter of this settlement agreement (to include EEO Case Number 2003-0502-2013103780), per the attached executed Notice of Withdrawal of EEO Complaint.
On March 2, 2014, Complainant informed the Agency that it was in breach of the settlement agreement, and requested that the Agency specifically implement its terms. Complainant alleged that the Agency failed, as of February 26, 2014, to remove the suspension from her eOPF, and replace it with the Letter of Reprimand.
On June 23, 2014, Complainant filed an appeal with the Commission noting that she had informed the Agency of the alleged breach and the Agency failed to issue a decision within 35 calendar days. On appeal, Complainant asserted that the settlement agreement stated in its terms that the Agency would rescind the suspension and replace it with a Letter of Reprimand by August 30, 2013. As of February 2014, the Agency failed to do so.
In its August 21, 2014 FAD, the Agency initially found that the EEOC did not have jurisdiction to review allegations of noncompliance with grievance settlements. The Agency then noted that it has complied with the terms of the settlement agreement. The Agency indicated that the fourteen-day suspension was cancelled on November 6, 2013, and the Letter of Reprimand was issued on April 16, 2014, and placed in Complainant's eOPF on April 30, 2014. The Agency found that it complied with the settlement agreement, albeit delayed. Therefore, the Agency concluded that it was not in breach of the settlement 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.
Here, there is some question about whether the agreement can be enforced under the 29 C.F.R. Part 1614 process because the parties technically entered into the settlement agreement in the grievance process. However, in this case Complainant filed her EEO complaint over the same suspension the day after she filed her grievance and several months before the agreement was finalized. Moreover, the agreement expressly stated, as one of its terms, that Complainant was withdrawing her EEO complaint (identified by case number). Therefore, we conclude that while also settling the grievance, this agreement was made "in conjunction with" the EEO process, and, therefore, the alleged breach is properly before us. See Title v. Department of Veterans Affairs, EEOC Appeal No. 01A12067 (October 8, 2002).
Turning to the issue of the Agency's compliance with the agreement, we find that the Agency established that that the fourteen-day suspension was cancelled on November 6, 2013, and the Letter of Reprimand was issued on April 16, 2014, and placed in Complainant's eOPF on April 30, 2014. While this was not accomplished within the timeframe contemplated by the agreement, the Agency is now in substantial compliance with the terms of the settlement, and Complainant has not alleged any specific harm resulted from the delay.
Accordingly, we AFFIRM the Agency's determination that it is now in full compliance with the terms of the settlement agreement.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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 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 (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 (Z0610)
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
December 5, 2014
__________________
Date
2
0120142463
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120142463