0120132875
04-28-2015
Complainant, v. Robert McDonald, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency.
Complainant,
v.
Robert McDonald,
Secretary,
Department of Veterans Affairs
(Veterans Health Administration),
Agency.
Appeal No. 0120132875
Agency No. 2004-0010-2012100218
DECISION
On August 2, 2013, Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from a final Agency determination (FAD) dated July 10, 2013, 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 Chief, Informatics Specialist, GS-14, at the Agency's Veterans Health Administration in Washington, DC.1
Believing that the Agency subjected her to unlawful discrimination, Complainant filed a formal complaint of discrimination dated October 31, 2011. On December 8, 2011, Complainant and the Agency entered into a settlement agreement to resolve the matter. The settlement agreement provided, in pertinent part, that:
2. ....The Agency agrees to assist the Complainant in attaining the skills to be competitive for a GS-15 position, but cannot guarantee a GS-15 position. The Agency will continue to develop the Complainant in an IT [information technology], informatics, and analytics technical leadership role. The Complainant will continue to support the Agency in the reorganization. To this end the Agency shall:
a. Place the Complainant in a VHA leadership development program on or before January 30, 2012 or the next available class, to include a formal mentor indentified through [identified person] the program manager of the VA Learning University mentoring program. The Personal Performance Development Plan will continuously be updated within the chain of command after working with a mentor as part of the mentorship program. In addition, informal mentoring will be utilized as needed and utilized in conjunction with the formal mentoring program.
b. If the Complainant completes an application for Leadership VA 2012 and/or 2013, the application will be endorsed by [Complainant's supervisor (S1)] and/or the Agency.2
The settlement agreement was signed by Complainant and the Principal Deputy Under Secretary for Health (not S1).
Complainant did not apply for the Leadership VA 2012 and/or 2013 because it required her to sign a service and mobility agreement. She explains that when she settled her case the Leadership VA 2012 and/or 2013 was under development, and the Agency did not know if a service and mobility agreement would be required. Complainant does not allege a breach of term 2.b. of the settlement agreement.
Regarding term 2.a., Complainant stated that the phrase "a VHA leadership development program" was not defined in the settlement agreement. The Agency concedes this point. Complainant stated that prior to signing the settlement agreement, S1 suggested that she review the Office of Personnel Management (OPM) Leadership Education and Development Certificate Program (LEAD) to fulfill term 2.a. The Agency writes that Complainant correctly noted that outside the four corners of the settlement agreement, the parties agreed that the Agency would pay for her to take a class with OPM's LEAD Program.
On the morning the parties signed the settlement agreement, S1 sent Complainant an email with the subject line "LEAD participation prior to January 30th 2012." Referring to information below, she wrote "for your review and let me know which steps you would like to take. I will discuss with you [sic.] with [identified person, apparently a management official] or you can do so." The information below was from OPM's website on its "Leadership Education and Development Certificate Program." It indicated a LEAD participant was required to complete five seminars within three years for a given level of leadership (Project Team Lead, Supervisor, Manager, and Executive (SES level)) to be eligible to obtain a LEAD Certificate. The information indicated that the participant may earn a LEAD certificate for a level of leadership, even if she was not at that level, but strongly recommended that the participant check with her training manager to see whether her agency had any specific rules on taking seminars for a higher level than her current position.
On the same morning, Complainant wrote S1 with the subject line "RE: From the OPM LEAD side - the recommend the [sic.] SES level." From OPM's website, Complainant presented a menu of seminars designed for an Executive (Senior Executive Service or equivalent senior manager level). Participants were to take one or two seminars from different columns, totaling five seminars. Minutes later, S1 responded "Yes. You decide the ones you want and let's get you in."
By March 2012, the Agency approved Complainant taking one seminar from the above menu in Denver, Colorado -- Leadership Assessment Level 2 (GS-14), which she took in September 2012.
Effective March 25, 2012, Complainant voluntarily accepted a demotion to the position of Program Specialist, GS-13, at the Nashville, Tennessee Veterans Affairs Medical Center (VAMC). Two days prior to this, she emailed S2 (her new supervisor for her GS-13 position) about the status of her settlement agreement. Complainant wrote that S1 approved her for OPM LEAD, "in lieu of VA Leadership" and she was taking her first seminar in September 2012. Complainant wrote that the formal mentorship program was combined with the VA Leadership program which she did not enter because of the service and mobility issue, but coaches and mentors were also available through the OPM LEAD program. She wrote she had informal mentorships.
At some point the Agency's Office of Resolution Management (ORM), which is responsible for handling equal employment opportunity (EEO) matters, inquired about the status of compliance with the settlement agreement. On March 26, 2012, a human resources official, in turn, made or forwarded an inquiry to S1, S2, and another official. In the inquiry it was written:
2. Settlement Agreement:
a. 2(a) - The VHA leadership development program that [Complainant] will attend is OPM Lead Training course, Denver, CO, September, 2012.
She asked for paperwork showing this training was approved.
On March 27, 2012, Complainant sent an email, with the subject "OPM Lead Certificate Path" to S2 indicating she wanted to resume taking OPM LEAD seminars after October 1, 2012.3 She wrote each seminar cost an average of $6,000, and provided the menu of seminars designed for the Senior Executive Service or equivalent senior manager level.
She followed up with other emails in May 2013, to another Agency official. Specifically, on May 7, 2013, she wrote that after signing the settlement agreement she had discussions about leadership training with S1 on the courses she was now requesting - OPM LEAD certificate track. She wrote that she and S1 used OPM LEAD, instead of VA Leadership, because VA Leadership required additional agreements which could not be waived (a reference to the service and mobility agreement).
On May 9, 2013, S2 orally informed Complainant that S1 did not support her request to take more OPM LEAD seminars. By email to ORM on May 9, 2013, Complainant alleged that the Agency breached the settlement agreement, and requested that it specifically implement its terms by approving her requests to complete the OPM LEAD seminars.
Thereafter, the Agency gathered information on Complainant's breach claim. S1 wrote that OPM leadership seminars appropriate to Complainant's level and grade and supervisory role were encouraged, and one was approved because it was appropriate at the GS-14 level, which Complainant completed. S1 wrote that many of the OPM seminars were appropriate for the SES level, and were restricted to a certain level of grade, expertise, and experience. She wrote that a participant must demonstrate increasing levels of skill before the next level course content will advantage their ongoing and professional development, and the supervisor must make the best decision on readiness before approving the participant for the next level.
S1 wrote that Complainant contacted her again in May 2013, requesting funding for OPM Leadership seminars appropriate for SES level executives. She called S2 to discuss the appropriateness of the seminars and Complainant's readiness to assimilate this information into the skills of her new job (at the GS-13 level). S1 wrote that S2 agreed these seminars were not appropriate to occur in quick succession, nor were they the best courses for Complainant's current role.
S1 estimated that registration and traveling fees for taking four more seminars, as Complainant requested, was $24,060.
S2 wrote that Complainant's current position does not require the level of leadership training that the OPM LEAD program provides, and the content of these seminars is not directly applicable to her current job assignments. She wrote that due to the cost (over $20,000), and lack of applicability to her current job assignments, she could not approve her attendance to OPM LEAD seminars.
In its FAD, the Agency noted Complainant admitted that the formal mentorship program was combined with VA Leadership and that she declined to participate in the latter because of the service and mobility requirement, preventing the Agency from fulfilling settlement term 2.a. The Agency found that there was nothing in the plain language of the settlement agreement requiring that it substitute VHA leadership training with OPM LEAD. The Agency recounted that after the parties entered into the settlement agreement Complainant took a voluntary demotion, which could not have been reasonably anticipated, and her current assignment did not require the same level of leadership training as her GS-14 position.
On appeal, Complainant argues that the phrase "VHA leadership development program" is not defined in the settlement agreement, and prior to its signing S1 suggested she review OPM LEAD seminars to fulfill term 2.a. She argues that her decision not to apply for Leadership VA did not prevent the Agency from fulfilling term 2.a. because this term did not require her to take the Leadership VA course. Complainant argues that because the settlement agreement does not define the meaning of the phrase VHA leadership development program, the EEOC must look outside the language of the agreement to determine the intent of the parties. She avers that while she is currently employed as a GS-13, she qualifies and is eligible for GS-14 and GS-15 positions because she has had more than a year in grade as a GS-14. She argues that her demotion does not affect the Agency's obligations under term 2.a. of the settlement agreement, noting the Agency agreed in term 2 to assist her in attaining the skills to be competitive for a GS-15 position. Complainant also argues that even if OPM LEAD is not technically a VHA leadership development program, the Agency modified term 2.a. of the settlement agreement when it offered her the opportunity to attend OPM LEAD and paid for her to attend the first seminar.
In opposition to the appeal, the Agency acknowledges that term 2.a. of the settlement agreement was not defined therein by observing Complainant acknowledged this. It writes that Complainant correctly noted that outside the four corners of the settlement agreement, the parties agreed the Agency would pay for her to take an OPM LEAD seminar, which she acknowledged completing in September 2012. The Agency agrees with Complainant's argument that term 2.b. of the settlement agreement did not obligate her to apply for Leadership VA, nor did the ability to perform term 2.a. depend on Complainant applying for Leadership VA. The Agency argues, however, that no provision of the settlement agreement required it to pay for and allow Complainant to attend the entire LEAD Certificate Program, which requires the participant to complete five seminars within a three year period. It argues that it fulfilled term 2.a. of the settlement agreement by paying for and allowing Complainant to attend one LEAD seminar in September 2012.
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 parties agree that the term 2.a. phrase "VHA leadership development program" is not defined in the settlement agreement. Parol or extrinsic evidence beyond the four corners of a settlement agreement will be considered where the terms thereof are ambiguous. Complainant v. Department of the Air Force, EEOC Request No. 0520130432 (Oct. 31, 2013). Such is the case here.
Complainant contends that prior to the settlement agreement, S1 suggested that she review the Office of Personnel Management (OPM) Leadership Education and Development Certificate Program (LEAD) to fulfill term 2.a. This is confirmed by the record. On the morning of the same day the parties entered into the settlement agreement, S1 sent Complainant an email with the subject line "LEAD participation prior to January 30th 2012." The same date is cited in term 2.a. S1 in the email provided information from OPM's website about OPM LEAD, which indicated a LEAD participant was required to complete five seminars within three years for a given level of leadership, not just one seminar. When Complainant responded the same morning that she was interested in taking a menu of OPM LEAD seminars designed for executives, S1 replied back minutes later "Yes. You decide the ones you want and let's get you in." This reflects an understanding that Complainant would be placed in a training program, not just one seminar, which is consistent with the design of the LEAD curriculum and the settlement agreement term to place her a "leadership development program" to assist in attaining the skills to be competitive for a GS-15 position.
Less than four months after entering into the settlement agreement in December 2011, Complainant took a voluntary demotion to GS-13. While the Agency does not argue this point on appeal, S1 and S2 wrote that in light of Complainant's current grade level, the OPM LEAD Program was no longer a fit as a training program for her current position. It is likely there is something too this, since information OPM provides on the program advises that while a participant may earn a LEAD Certificate for a level of leadership, even if s/he is not at that level, it strongly recommended the participant check with her training manager to see if her agency has any specific rules regarding taking seminars for a higher level than her current position.
While circumstances have changed since the parties entered the settlement agreement as a result of Complainant's voluntary demotion, the Agency has not shown this makes it impossible for it to comply with term 2.a. of the settlement agreement by paying for Complainant to take the full OPM Leadership Education and Development Certificate Program. OPM advised that a participant may earn a LEAD Certificate for a level of leadership, even if she is not at that level. While not dispositive, Complainant's contention that she is still eligible for GS-14 and GS-15 positions based on her years in grade at GS-14 is not disputed by the Agency.
As remedy, the Agency shall comply with the settlement agreement by approving and paying for her participation in OPM LEAD. Given the time that has elapsed since she completed her first seminar, Complainant will not be able to complete the remaining four seminars within three years thereof, as required to obtain an OPM LEAD certificate. Accordingly, the Agency must approve and pay for Complainant starting over again in OPM LEAD - meaning paying for five additional seminars, or whatever is currently required for Complainant to receive an OPM LEAD Certificate.
The FAD is REVERSED. On remand, the Agency shall comply with the order below.
ORDER
Within 15 calendar days after this decision becomes final,4 the Agency shall:
1. Ask in writing for Complainant to submit a written request for reenrollment in the OPM Leadership Education and Development Certificate Program (LEAD), including her request to enroll in the next seminar, with the goal of obtaining a LEAD certificate. This can include seminars designed for Executives (Senior Executive Service or equivalent senior manger level).
2. The Agency shall promptly grant Complainant's request, and pay for travel, per diem, and registration fees for the seminar, and other seminars she requests to allow her to obtain an OPM LEAD Certificate. If this requires Complainant to take an additional seminar because the credit for the one she took in September 2012 expires before she can complete the LEAD Program in three years, the Agency must grant her request for this -- meaning pay for the additional seminar, travel thereto, and per diem.
3. The Agency shall submit reports of Compliance, with copies to Complainant and her attorney, documenting its ongoing compliance with this order, as referenced below.
ATTORNEY'S FEES (H0610)5
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.
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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 (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), 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 (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 (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
April 28, 2015
__________________
Date
1 The Counselor's Report indicates the Veterans Health Administration was in Washington, DC and Complainant's personal address was in Tennessee. The record is not clear on the location of Complainant's duty station.
2 In other terms of the settlement agreement the Agency agreed to approve for and pay for Complainant taking other various courses and certifications.
3 Complainant explained therein that she did not want to resume participation in LEAD seminars prior to this time because she was taking a course for Program/Project Managers to obtain Federal Acquisition Certification, and if she took LEAD seminars at the same time she would be traveling about three weeks a month, which she did want to do.
4 If neither party files a request for reconsideration, this decision becomes final within 30 days after the parties receive this decision. The Commission presumes the parties will receive this decision within five calendar days after it is mailed.
5 In the settlement agreement, Complainant waived any claims, included attorney fees, with the exception of any claims that may arise by reason of breach of any term of the settlement agreement. While the counselor's report indicated that Complainant's claim was based on age, in the complaint which was settled she raised the bases of age and sex (gender).
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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