[Redacted], Justine R., 1 Complainant,v.Denis R. McDonough, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency.

Equal Employment Opportunity Commission

Jan 31, 2023

Appeal No. 2022004808 (E.E.O.C. Jan. 31, 2023)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Justine R.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency. Appeal No. 2022004808 Agency No. 2004-07 30-2017 101 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from a final decision by the Agency dated August 12, 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 Program Support Assistant at the Agency’s Office of Community Care in Durham, North Carolina. Believing that the Agency subjected her to unlawful discrimination, Complainant contacted an Agency EEO Counselor to initiate the EEO complaint process. On July 29, 2019, Complainant and the Agency entered into a settlement agreement to resolve the matter. The settlement agreement provided, in pertinent part, that: The Agency shall remove the Complainant from the supervision of [redacted name] Facility Revenue Manager of the Durham VAMC, and assign the Complainant to the Supervision of the Birmingham Alabama Facility Revenue Manager, [redacted name], within 30 calendar days of execution of this agreement. 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. 2022004808 2 By letter to the Agency dated June 22, 2022, Complainant alleged that the Agency was in breach of this term in the settlement agreement. Specifically, Complainant alleged that the settlement agreement did not stipulate a change in her duty station; a possible salary reduction; or possible tax liabilities for two states from working in one and living in another. On August 12, 2022, the Agency concluded that there was no breach of the settlement agreement because Complainant’s supervisor was changed on August 5, 2019, which was within seven days of the execution of the settlement agreement. They Agency noted that, on March 26, 2021, Complainant requested a voluntarily relocation to Birmingham. The Agency determined that it complied with the plain and ordinary meaning of the settlement provision at issue; and as such, there was no breach. The Agency also noted that Complainant’s allegation may be considered as a subsequent event, and that Complainant filed a formal complaint on June 22, 2022, which was being processed as a mixed-case complaint. The instant appeal followed, and Complainant filed a brief in support of her appeal. The Agency opposed Complainant’s appeal. 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, we find Complainant did not establish that the Agency breached the relevant term in the settlement agreement. The Agency provided a copy of Complainant’s fiscal year 2019 performance appraisal confirming that she was assigned to Birmingham on August 5, 2019, which was signed by the new named supervisor. In addition, Complainant provided an email from the Chief Operating Officer informing her that she was assigned a new supervisor, effective August 5, 2019. Complainant Appeal brief at 63. As such, we find that the Agency and Complainant established specific compliance with the settlement agreement. 2022004808 3 On appeal, Complainant argues that the Agency “modified” the specific provision in the settlement agreement and gave an ambiguous understanding to the term “assign.” Complainant asserts that there was a “modification” of her duty station, salary, and tax liabilities. However, the evidence shows that Complainant submitted a request to relocate from Durham, North Carolina to Birmingham, Alabama on or about March 26, 2021. Complainant specified that this was a voluntary request, and it would be at her expense. We find that the change in Complainant’s duty station, with the subsequent salary change and increased tax liabilities came from this request from Complainant, which was separate from the settlement agreement. The Agency did not modify the settlement agreement, and Complainant’s attempt to blame the Agency for these changes is misplaced. We note that the settlement agreement is silent regarding a change in duty station, salary, or any tax liabilities resulting from a relocation and salary change,2 and that Complainant should have bargained for the inclusion of these matters in the settlement agreement, if she wished for them to be addressed. Regardless, as noted in the breach determination, Complainant filed a new EEO complaint alleging discrimination for these issues, which is being processed by the Agency. We also find that the Agency did not give an ambiguous meaning to the term “assign,” and that the evidence proves that it complied with the unambiguous agreement to change Complainant’s supervisor within the stipulated timeframe. Complainant further asserts that the Agency omitted “several issues.” Complainant Appeal at 27. However, a review of Complainant’s original claim of a settlement breach shows that she only alleged a breach regarding the change in her duty station, salary, and possible tax liabilities. The Commission has held that it is not appropriate for a complainant to raise new claims for the first time on appeal. See Hubbard v. Dep’t of Homeland Security, EEOC Appeal No. 01A40449 (Apr. 22, 2004). We find that Complainant raises these new issues for the first time on appeal, and we will not address in the instant decision.3 Complainant also argues that the Agency omitted documents from the file, such as her SF-50 form showing her duty station as Ashville, North Carolina in 2016. However, a review of Complainant’s documents on appeal do not support that the Agency breached the agreement to place Complainant under the supervision of the new one in Birmingham. Accordingly, we find that Complainant did not establish a breach of the settlement agreement. 2 The settlement agreement included a provision regarding additional tax liability for the payment made to Complainant pursuant to the settlement agreement specifying that Complainant bears sole responsibility. The Agency agreed to pay Complainant $9,000.00 as part of the settlement agreement. 3 Complainant uploaded additional documents in January 2023, requesting the appointment of an Administrative Judge for new claims. Complainant is advised to direct any hearing request to the appropriate address that is listed on the hearing request form. 2022004808 4 CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency’s determination that it did not breach the settlement agreement. 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 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. 2022004808 5 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. 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 January 31, 2023 Date