0120181233
08-15-2018
Belinda K,1 Complainant, v. Peter O'Rourke, Acting Secretary, Department of Veterans Affairs, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Belinda K,1
Complainant,
v.
Peter O'Rourke,
Acting Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120181233
Hearing No. 480-2017-00631X
Agency No. 200P04592016102653
DECISION
Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission) that the settlement agreement into which the parties entered should be voided. 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 Health Systems Specialist at the Agency's Pacific Island Health Center in Honolulu, Hawaii.
Believing that the Agency subjected her to unlawful discrimination, Complainant contacted an Agency EEO Counselor to initiate the EEO complaint process. The matter was investigated. Following the investigation, Complainant requested a hearing before the Equal Employment Opportunity Commission Administrative Judge (AJ).
While the matter was pending before the AJ, the parties engaged settlement discussions. On February 1, 2018, Complainant and the Agency entered into a settlement agreement to resolve the matter. The settlement agreement provided, in pertinent part, that:
(2) The Agency agrees to re-assign Complainant from her current position to that of Records Information Management Specialist, at her current grade and step level, at VA Pacific Islands Health Care System (PIHCS) within 30 calendar days of the date of this Agreement. For a period of 90 days following the effective date of re-assignment, Complainant will have the right to return to her current position.
(3) The Agency agrees to pay Complainant the amount of $733.34 (Seven hundred thirty-three and 34/00 Dollars), and to Complainant's counsel...the amount of $1,266.66 (One thousand two hundred sixty-six and 66/00 Dollars), and restore seventy-five (75) hours of sick leave to Complainant.
(8) The parties specifically acknowledge that Complainant has preserved the following rights and responsibilities through the execution of this Agreement:
a. That Complainant has thoroughly reviewed the entire Agreement and understands its provisions; and
b. That Complainant has not waived any rights or claims that may arise after the date of this Agreement is signed; and
c. That Complainant has not waived any rights or claims to benefits to which she is entitled or which may arise after the date this Agreement is signed; and
d. Complainant has the right to consult with an attorney prior to signing the Agreement; and
e. That Complainant has a period of twenty-one (21) days to consider the Agreement; and
f. That Complainant acknowledges that there is no claim in her complaint based on age discrimination.
Complainant indicated to her attorney on February 6, 2018, that she wanted to reconsider the settlement agreement. Complainant's attorney resigned from representing her. Complainant indicated that she then tried to contact the AJ on February 9, 2018, to reconsider the settlement agreement. By letter to the AJ dated February 21, 2018, Complainant requested that the settlement agreement be voided. She stated that her understanding of provision (8) was that she was to have 21 days to review the settlement agreement in order to rescind it. She also argued that she was not given 21 days to review the settlement agreement. Complainant has also alleged that she did not understand the settlement and that she was under great stress and has experienced great depression during this time. As such, she was not able to focus on the situation. When the Agency failed to respond, Complainant filed an appeal with the Commission on February 28, 2018. Complainant asked that her appeal be approved and that she receive justice from the harassment and hostile work environment she has experienced for over two years.
The Agency responded to Complainant's appeal by providing the Commission a copy of the complaint file and hearing record. The Agency failed to address Complainant's claims regarding voiding the settlement agreement.
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, the Agency failed to respond to this Commission's request for the Agency's file with the record pertaining to the claim of breach of the settlement agreement. The only documents available to the Commission in this matter were provided by Complainant, and involved her claims that the settlement agreement should be put aside. The documents provided by the Agency involve Complainant's EEO Complaint and Hearing Record. There is no documentation pertaining to the Agency's response to Complainant's requests to vacate the settlement agreement or any actions the Agency has taken to comply with the terms of the settlement agreement. Without the rest of the record, we cannot determine whether the settlement agreement should be set aside.2 Therefore, this matter is remanded to the Agency to supplement the record concerning Complainant's claim of breach of the settlement agreement.
CONCLUSION
Because there is insufficient evidence to determine whether the agency breached the settlement agreement, we REMAND the matter in accordance with the ORDER below.
ORDER
The Agency is ordered to process Complainant's instant allegation regarding the settlement agreement in accordance with 29 C.F.R. � 1614.504(b), including but not limited to issuing a written response. The Agency shall provide Complainant with its written response, with appeal rights to the Commission, addressing her claims within thirty-five (35) calendar days of the date this decision becomes final.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0618)
Under 29 C.F.R. � 1614.405(c) and �1614.502, compliance with the Commission's corrective action is mandatory. Within seven (7) calendar days of the completion of each ordered corrective action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP) supporting documents in the digital format required by the Commission, referencing the compliance docket number under which compliance was being monitored. Once all compliance is complete, the Agency shall submit via FedSEP a final compliance report in the digital format required by the Commission. See 29 C.F.R. � 1614.403(g). The Agency's final report must contain supporting documentation when previously not uploaded, and the Agency must send a copy of all submissions to the Complainant and his/her representative.
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 (M0617)
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. A party shall have twenty (20) calendar days of receipt of another party's timely request for reconsideration in 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). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. Complainant's request may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 agency's request must be submitted in digital format via the EEOC's Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g). 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 (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
August 15, 2018
__________________
Date
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.
2 We remind the parties that if the Agency finds that the settlement agreement is void, then Complainant must return to the status quo and return any money and leave obtained pursuant to the settlement agreement and the complaint should be remanded back to the Hearings unit.
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