Joy Harris, Complainant,v.R. James Nicholson, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionSep 5, 2006
01a62194 (E.E.O.C. Sep. 5, 2006)

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