[Redacted], Hester S., 1 Complainant,v.Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Jul 26, 2022

Appeal No. 2022001865 (E.E.O.C. Jul. 26, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Hester S.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2022001865 Agency No. 200P-0377-2012103799 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from a final decision (FAD) by the Agency dated February 18, 2022, 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 Claims Assistant, GS-6, at the Agency’s San Diego Veterans Affairs Regional Office facility in San Diego, California. Believing that the Agency subjected her to unlawful discrimination, Complainant contacted an Agency EEO Counselor to initiate the EEO complaint process. On October 27, 2016, Complainant and the Agency entered into a settlement agreement to resolve the matter. Provision 3(a) of the settlement agreement provided, in pertinent part, that the Agency would: . . . [p]romote Complainant to the position of VSR [Veterans Service Representative] GS-9/1 (GS 7/9/10/11 track) effective January 15, 2012. The promotion shall include all automatic GS- level promotions and step increases retroactive to January 15, 2012. Complainant agrees that she has seen the position description (PD) for the position of VSR and that she is capable of 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. 2022001865 2 performing the duties required for the position and that she accepts the position and its responsibilities without modification. Per public law 110-389 the Complainant must pass skill certification examination in order to obtain the full performance level GS-11. Training will begin within 14 days of the Complainant's execution of this agreement; Complainant will be nominated for the next Challenge session. While waiting, she will be provided an estimated 1.5 - 2 months on the job training, plus Instructor-led Web-based Training, 6 weeks off-site resident training, and there will be no output and quality element expectation for 90 days following the completion of challenge training regardless of entry grade. The PD and performance standards are attached as exhibit A. By letter to the Agency dated October 21, 2021, Complainant alleged that the Agency was in breach of the settlement agreement. Specifically, Complainant alleged that the Agency failed to promote her to GS-11 or permit her to take the certification examination, as required by the settlement agreement. She further attested that, on January 30, 2018, Veterans Service Center Manager (“VSCM”) and Coach, Development Team 2 (“Coach”) had both “proactively” contacted her to dissuade her from taking the exam at that time, allegedly stating that Complainant was supposed to wait to take the exam until she had been in the classification for 24 months. Complainant stated she was not aware at the time that this was not true. She further stated that, in early August 2021, Agency Human Resources representatives informed her that the skill certification exam and promotion to GS-11 were no longer available. In its February 18, 2022 FAD, the Agency concluded it did not breach the settlement agreement. It determined that it had attempted to comply with Provision 3(a) of the settlement agreement in good faith but that circumstances transpired that neither the Agency nor Complainant could have foreseen. These included Complainant’s not taking the exam in February 2018 after being told most employees wait until they have been in the position for 24 months before taking it; Complainant’s being on Family Medical Leave (FMLA)/Leave Without Pay (LWOP) when the May 2018 exam was offered; Veterans Benefits Association’s (VBA’s) canceling of the May 2018 exam; and VBA’s pausing of exam administration from 2019 to the present day. Thus, Complainant was not able to take the skill certification exam while it was still being offered. The Agency put forward that there was another path for Complainant to obtain a promotion to GS-11, which was to apply to such positions when they are advertised on USAJobs. CONTENTIONS ON APPEAL On appeal, Complainant argues that the Agency acted in bad faith when it misrepresented to her that she should not take the certification exam until she was in her position for 24 months, causing her to postpone an exam that was related to a pending investigation, and is no longer available. 2022001865 3 She further submits that the Agency did not inform her when the next exam was available, in May 2018, though she asserts that all other exam-eligible employees were informed of it. Moreover, she declares, contrary to the Agency’s assertions, she was not on FMLA or LWOP at that time. According to Complainant, the settlement agreement did not require the Agency to nominate her for a single exam but to ensure that Complainant took the exam to realize the full GS-11 potential of her position. Furthermore, she contends, the Agency insinuated that the exam would be available and should be held accountable for that misrepresentation. She asks that the final agency decision be overturned. The Agency argues on appeal that, per the settlement terms, it nominated Complainant to take the next exam, offered in February 2018. According to the Agency, Complainant chose not to take the exam at that time, preferring to wait the full 24 months in her then-position before taking it. The Agency thus maintains that it attempted to comply with Provision 3(a) of the settlement agreement. Unfortunately, due to unforeseen circumstances such as Complainant’s FMLA status, LWOP status, and the halt on the administration of the certification exam, there was a delay in Complainant’s ability to take the skill certification exam. It also submits that there is an element of good faith in settlement agreements that extends to actions taken regarding fulfillment of the obligations of an agreement. In addition, the Agency puts forward, pursuant to the doctrine of impossibility of performance, provisions in a settlement agreement can be terminated if unforeseen circumstances prevent the performance. 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 (Dec. 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 Affs., EEOC Request No. 05900795 (Aug. 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 (Dec. 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. Bldg. Eng’g Servs. Co., 730 F.2d 377 (5th Cir. 1984). In the instant case, we find the Agency did not breach the settlement agreement. Complainant does not dispute that the Agency nominated her to take the next exam, in February 2018. Yet she chose not to take it, alleging that the Agency acted in bad faith when VSCM and Coach, on January 30, 2018, misled Complainant into thinking she should not take the exam until she had been in her position for 24 months. 2022001865 4 However, the documents submitted by Complainant with her breach allegation show only that, when she sought email confirmation from Coach on January 30, 2018, on whether Complainant could wait to take the exam until she had 24 months’ experience, Coach replied that Complainant was not required to take the upcoming exam, adding that most people wait to take the exam until they have been in the position for 24 months. It is thus clear that Complainant bears some responsibility for the Agency not providing her with the opportunity to take the exam while it was still being offered. To the extent that Complainant asserts that the Agency failed to inform her when the May 2018 exam was open, we note that this claim is beyond the scope of the terms of the settlement agreement. Furthermore, the settlement agreement did not provide any language to address an alternative to the certification exam in the event of unforeseen cancelation. Here, the language simply states that the Agency would nominate Complainant to take the next exam and that “Complainant must pass skill certification examination in order to obtain the full performance level GS-11.” If contingencies in the event of a change in exam administration by the VBA and/or the taking of period(s) of leave on Complainant’s part were essential to Complainant, she should have bargained for the inclusion of such terms in the settlement agreement. CONCLUSION Accordingly, the Agency’s finding of no breach of the October 27, 2016, settlement agreement is AFFIRMED. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within which to submit a brief or statement in opposition. 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). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at 2022001865 5 https://publicportal.eeoc.gov/Portal/Login.aspx Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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. 2022001865 6 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 July 26, 2022 Date