0120121863
09-07-2012
Willie E. Foster, Sr., Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Willie E. Foster, Sr.,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120121863
Agency Nos. 200H-0529-2012100597; 200H-0529-2012101516
DECISION
Complainant filed a timely appeal with this Commission from the Agency's determination, dated February 29, 2012, 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. For the following reasons, the Commission MODIFIES the Agency's decision. We AFFIRM, in part, and REMAND the matter to the Agency for further processing, consistent with this decision and Order below.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Motor Vehicle Operator/ Warehouse Acquisition and Material Management, at the Agency's Butler VA Medical Center facility in Butler, Pennsylvania.
On December 21, 2011, Complainant and the Agency entered into a settlement agreement to resolve Agency No. 200H-0529-2012100597. That complaint pertained to incidents supporting a November 4, 2011 suspension and a November 14, 2011 reassignment. The settlement agreement provided, in pertinent part, that:
(1) Complainant "voluntarily withdraws all pending informal and formal EEO complaints, including but not limited to EEO Case No. 200H-0529-2012100597" and "waives any and all actions, claims, complaints, EEO complaints, grievances, appeals and proceedings of whatever nature against the Agency ...based on any action taken as of the date of Complainant's execution of this agreement."
(2) The Agency will downgrade the action to a reprimand and place the reprimand in abeyance for a period of one year. Should the Complainant engage in any misconduct during the one year abeyance period, he will be deemed to have breached this agreement and will receive the reprimand for the charges as outlined in the proposed suspension letter. . . Complainant agrees that he waives any rights to appeal the reprimand, either via the EEO process or the VA negotiated grievance procedures. The Director, Butler VA Healthcare, will make the determination of whether Complainant violated this agreement, and that determination is unappealable.
(3) Should Complainant violate this agreement by committing misconduct, the Agency reserves the right to effectuate further discipline to address the misconduct that violated the agreement in addition to the reprimand listed in paragraph above.
(4) Should Complainant complete the one year abeyance period without any further misconduct, the Agency will remove the reprimand from the Human Resources file and no further action will be taken.
(5) If Complainant believes that the Agency has not complied with the terms of this Settlement Agreement, he may notify the Deputy Assistant Secretary for Resolution to request the terms of this Settlement Agreement be specifically implemented or, alternatively request that the EEO complaint be reinstated.
On January 24, 2012, the Logistics Manager (supervisor) sent Complainant an email, posing the question "Who made the CBOC run last Wednesday?" Complainant responded that same morning to her, stating that he did the last CBOC run and added that he did not forget or overlook any part of his assignment. Later, another email was sent to a number of employees, including Complainant regarding "clean equipment and a dirty bin on location." That email had been generated by the EEO/SPS Manager. On January 25, 2012, Complainant responded to the EEO Manager's email, objecting to being included in the conversation. He stated that "All I do is drive. I have no control over what comes or goes to any CBOC. The EEO Manager replied to Complainant "Yes, you do need to be involved [in the conversation] as you are the driver picking up the soiled RME and have the responsibility for it." On January 25, 2012, Complaint submitted a Report of Contact, in which he alleged bias and discrimination by his supervisor. On January 26, 2012, Complainant states that he was approached by the EEO Manager and told her of his concerns about his safety.
The record shows, in communications and Reports of Contact with the Agency, that Complainant alleged that the Agency was subjecting him to ongoing harassment and retaliation.
By letter to the Agency dated January 30, 2012, Complainant posed a question to the Agency EEO Manager regarding the meaning of the Agreement. The question pertained to section 5, which provides that, if Complainant believes the Agency has not complied, he could seek reinstatement of his complaint. The Agency construed the inquiry as an allegation that the Agency was in breach of the settlement agreement, and that Complainant was requesting that the Agency specifically implement its terms. Complainant was clearly asserting new claims of reprisal, as well.
The record shows that, thereafter, the Agency issued him a two-day suspension on January 31, 2012. The letter proposed the suspension for disrespectful conduct regarding Complainant's response to the email inquiry. The record includes a second letter, also dated January 31, 2012, to Complainant. The subject of the letter is "Abeyance of Reprimand." In that letter, the Agency informed Complainant that the Acting Associate Director had concluded that Complainant failed to comply with the terms of the parties' agreement. The Acting Associate Director stated that he reached his conclusion based on documentation submitted by the Logistics Service Line. The letter added that the documentation will be utilized in pursuing additional disciplinary action. The letter included a reprimand for conduct that occurred on October 26, 2011 and November 3, 2011.
On February 2, 2012, Complainant was approached by his supervisor about the placement of his radio. On that same day (February 2, 2012), Complainant sent an email and stated "this is my formal charge I am working in a hostile working environment imposed by my supervisor." He identified two individuals by name. One of the named officials was his supervisor.
On February 6, 2012, the second named officials sent an email which accused Complainant of "sleeping on the job" from 12:40 PM to 12:58 PM, which was during Complainant's authorized break period.
On February 8, 2012, the Acting Associate Director issued Complainant a letter, subject "Restricted Entry / Status". The letter notified Complainant that, effective immediately, Complainant was in a non-duty status and was not to report for duty, but must "remain available at all times during working hours to receive communications and immediate return to workplace notices. If [he was] not available when contacted, [he] will be considered absent without leave." In addition, the notice prohibited Complainant from entering the facility, without first reporting to the VA Police and Security Office to "notify them of [his] need to enter."
On February 13, 2012, the Agency issued Complainant a Proposal to Remove for conduct unbecoming a federal employee.
In its February 29, 2012 decision, the Agency concluded that it had not breached the terms of the December 21, 2011 settlement agreement. The Agency stated that the November 4, 2011 reprimand was still being held in abeyance and that the January 31, 2012 Proposed 2-Day Suspension" had been rescinded. The Agency stated that it will continue to hold those items in abeyance pending the decision on the February 13, 2012, "Proposed Removal".
In addition, the Agency found that Complainant was raising the same issue which the Agency previously addressed (race discrimination, harassment and the creation of a hostile work environment). The Agency stated that if Complainant's concerns were not resolved during the informal counseling process, the Agency will issue a Notice of Right to File a Discrimination Complaint. In the decision, the Agency states that if "EEOC determines that the agency is not in compliance with the settlement agreement and the noncompliance is not attributable to acts or conduct by you, it may order compliance or it may order that the complaint be reinstated for further processing from the point processing ceased, i.e. status quo ante. "Therefore, any benefits received pursuant to the settlement agreement must be returned before reinstatement."
CONTENTIONS ON APPEAL
On appeal, Complainant asserts that the Agency did not hold the prior actions in abeyance and has continued to retaliate and harass him, creating a hostile work environment. He asks that the agreement be implemented, or the complaint reinstated, and that the Commission order the investigation of the alleged discriminatory actions that took place subsequent to the Agreement.
The Agency maintains the Agreement did not preclude the Agency from issuing disciplinary actions for misconduct. The Agency also states that Complainant is not alleging a breach of the settlement agreement and that its decision should be affirmed.
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).
Generally, as long as some legal detriment is incurred by each party as part of the bargain, the adequacy or fairness of the consideration in a settlement agreement is not at issue. In this case, the Agency reduced the level of the disciplinary action. We find that the settlement agreement was valid.
Pursuant to 29 C.F.R. � 1614.504(c), subsequent acts of discrimination and reprisal shall be processed as separate complaints. It is clear from our reading of this record that Complainant is seeking to raise additional acts of discrimination that occurred after the parties executed the December 21, 2011 agreement. Complainant made contact with the EEO Manager on several dates, including both January 25, 2012 and January 26, 2012. The record references Agency case number 200H-0529-2012101516, with the initial EEO contact date occurring on January 25, 2012, but the complaint refers to incidents occurring on January 26, 2012. The January 26, 2012 date should be used as the date of initial counselor contact. Our review of the record does not show that the Agency provided Complainant with a Notice of Right to File or accepted his amended complaint.
Based on the foregoing, we find that the Agency did not breach the Agreement. The Agency's decision finding no breach of the settlement agreement is AFFIRMED.
We MODIFY the decision, however, to require the Agency to process Complainant's allegations of subsequent acts of discrimination after the December 21, 2011 agreement. The Commission orders the Agency to accept and fully investigate the incidents identified in this decision, including Complainant's complaint 200H-052902012101516, alleging retaliation, harassment and a hostile work environment. This decision does not negate or impact any prior settlement agreements that predated the parties December 2011 agreement.
CONCLUSION
Accordingly, .we deny Complainant's request for reinstatement of his complaint 200H-0529-2012100597, but we MODIFY the final decision to order the processing of Complainant's claims of subsequent acts of discrimination and reprisal after December 21, 2011, including complaint 200H-0529-2012101516. We REMAND the matter to the Agency for continued processing, consistent with this decision and the Order below.
ORDER
The Agency is ordered to process the remanded claims of subsequent acts of discrimination and reprisal referenced in this decision pursuant to 29 C.F.R. Part 1614, specifically in accordance with 29 C.F.R. � 1614.108. The Agency shall acknowledge to the Complainant that it has received the remanded claims within thirty (30) calendar days of the date this decision becomes final. The Agency shall issue to Complainant a copy of the investigative file and also shall notify Complainant of the appropriate rights within one hundred fifty (150) calendar days of the date this decision becomes final, unless the matter is otherwise resolved prior to that time. If the Complainant requests a final decision without a hearing, the Agency shall issue a final decision within sixty (60) days of receipt of Complainant's request.
A copy of the Agency's letter of acknowledgment to Complainant and a copy of the notice that transmits the investigative file and notice of rights must be sent to the Compliance Officer as referenced below.
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 tends 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
September 7, 2012
__________________
Date
2
0120121863
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013