01a62194
09-05-2006
Joy Harris, Complainant, v. R. James Nicholson, Secretary, Department of Veterans Affairs, Agency.
Joy Harris,
Complainant,
v.
R. James Nicholson,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A62194
Agency No. 200M-0657-2003103496
DECISION
Complainant filed a timely appeal with this Commission from a final
decision (FAD) by the agency dated February 28, 2006, finding that it was
in compliance with the terms of the August 24, 2005 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.
The settlement agreement provided, in pertinent part, that:
(1) The agency agrees to restore complainant to the ICU critical care
rotation schedule of fees basis nurses at the agency's medical center
in St. Louis, Missouri, John Cochran Division. Complainant shall be
paid for services at the current rate of pay established by the agency
for fee basis nurses.
(2) Complainant aggress to attend employee orientation applicable to
fee basis nurses who work at the agency's medical center in St. Louis,
Missouri, John Cochran Division.
(3) Complainant further agrees to attend interpersonal skills training
with three months of the date of this agreement.
(4) Complainant agrees that she will not be paid any back pay
whatsoever.
By letter to the agency dated December 30, 2005, complainant alleged that
the agency was in breach of the settlement agreement, and requested
that the agency specifically implement its terms. Specifically,
complainant alleged that the agency failed to reinstate her per the
terms of the settlement agreement. She noted that she has called five
times a month in a good faith effort to comply with the agreement.
Complainant indicates that the agency has not had one orientation in
five months and all interpersonal skills training classes were full.
Further, she requested that back pay be provided based on the agency's
noncompliance and her complaint should be processed.
In its February 28, 2006 FAD, the agency concluded that complainant's
claim of breach was untimely. The agency noted that complainant
had thirty days after the date of the alleged breach to contact the
agency. The agency asserted that complainant believed that she should be
reinstated within one week of the settlement agreement which would have
been August 31, 2005. However, based on complainant's correspondence
dated February 6, 2006, complainant asserted that she believed the
agency breached the settlement agreement on December 16, 2005, when
she was contacted about providing her college degree. Therefore, the
agency waived the time frames for her claim of non-compliance with the
settlement agreement.
The agency found that it did not breach the settlement agreement noting
that it did "everything they could to restore [complainant] to the
fee basis position." However, the agency argued that complainant's
failure to provide it with a complete application and copies of her
school transcripts was the reason they had not reinstated complainant.
Consequently, the agency asserted that it is no longer obligated to
reinstate complainant or to assist her with the orientation or the
interpersonal skills training. Therefore, the agency concluded that it
was not in breach of the settlement agreement.
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. Department of Defense,
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. Department 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. United States Postal
Service, 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 record indicated that the agency was in the
process if restoring complainant to her position as a fee basis nurse at
the agency's medical center in St. Louis, Missouri, John Cochran Division.
The agency indicated that complainant was removed from her position on May
13, 2003. The agency informed complainant that the agency's retention
of documents policy provided that the agency destroy applications for
employment and related materials for fee basis employees one year after
the termination of services. Therefore, the agency indicated that it
did not maintain complainant's application package and needed a new copy
of such documentation. The agency asked complainant to provide copies
of her application package and provided complainant with the reasons for
the request. Complainant provided a copy, however the agency noted that
several items were incomplete, such as residence address, phone number,
registration and clinical privileges information, and various licensing
certification information. The agency noted that these documents
were required in order to process her restoration. The record also
indicated that there were several conversations between complainant
and agency officials regarding the need for complete documentation in
order to process the restoration of complainant into her prior position.
There is no indication that complainant has provided the agency with a
complete application package with college transcripts.
As an initial matter, the Commission finds that complainant is not
"untimely" regarding her claim of breach of the settlement agreement.
We note that the settlement agreement did not provide a timeframe
for the reinstatement to occur. Further, based on the communications
between the agency and complainant, the agency was in the process of
getting complainant restored to her prior position when complainant
alleged breach. Therefore, we cannot find that complainant was untimely
in her claim of non-compliance.
Upon review of the record, we find that the agency was in the process of
restoring complainant to her position as a fee basis nurse. In order
to restore complainant, the agency was required to gather information
from complainant since it destroyed her application and other related
materials. We note that the documents sought by the agency related to
complainant's qualifications for the position and licensing certification
for the fee basis nurse position. We find that the agency's requests
were reasonable in order to process the restoration requirement of the
settlement agreement. Therefore, we conclude that the agency has not
breached the settlement agreement. We strongly encourage complainant
to cooperate with the agency in order to get the appropriate documents
to the agency for the proper processing of her restoration.
As to the issue of the orientation training and the interpersonal skills
training, we find that once the agency has complied with restoring
complainant to the fee basis nurse position, these provisions should be
addressed by both parties.
CONCLUSION
Accordingly, we affirm the agency's final decision finding no breach of
the settlement agreement.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 19848,
Washington, D.C. 20036. 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 (S0900)
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 (Z1199)
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 that the Court appoint
an attorney to represent you and that the Court 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 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
September 5, 2006
__________________
Date
2
01A62194
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
5
01A62194