01a50444
05-31-2005
Cindy L. Capaldi, Complainant, v. R. James Nicholson, Secretary, Department of Veterans Affairs, Agency.
Cindy L. Capaldi v. Department of Veterans Affairs
01A50444
May 31, 2005
.
Cindy L. Capaldi,
Complainant,
v.
R. James Nicholson,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A50444
Agency No. 200J-0655-2004102931
DECISION
Complainant filed a timely appeal with this Commission from a final
decision (FAD) by the agency dated October 8, 2004, finding that it was
in compliance with the terms of the March 16, 2004 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:
The agency shall place the employee in a workspace with ventilation to
accommodate her request.
Complainant sought EEO counseling on May 28, 2004, alleging that
the agency was in breach of the settlement agreement, and requested
that the agency specifically implement its terms. Specifically,
complainant alleged that she was moved to an office space as a reasonable
accommodation of a disability and in settlement of an EEO complaint,
and that subsequently, she was returned to her old office space in breach
of that agreement.
In its November 10, 2004 FAD, the agency concluded that it was in total
compliance with the settlement agreement based on complainant's doctor
releasing her to duty because the agency met the indoor air requirement.
The agency also noted that its decision to return complainant to the
second floor was due to the entire third floor being realigned as an
outpatient clinic space for outpatient activities.
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).
The record establishes that prior to returning complainant to her
original work area, the agency installed a multi-filter air cleaning
system in the room and ventilation and air quality tests were conducted.
In a letter dated August 4, 2004, the agency requested that complainant's
physician advise as to the date that she could return to normal duties
in the ventilated office. The record reflects that on August 12, 2004,
complainant's physician notified the agency that complainant is medically
unable to tolerate the cleaners and solvents used near her work area.
According to her physician, the fumes from the cleaners and solvents
would cause complainant to suffer severe headaches, shortness of breath,
and nasal congestion leading to bloody nasal discharge and recurrent
sinus infections. Complainant's physician also proposed two specific
accommodations to remedy the situation. Furthermore, in a letter dated
August 17, 2004, the medical doctor that originally requested that
complainant's work area meet certain standards wrote that the work area
prepared by the agency did not meet those standards.
Here, the plain language of the settlement agreement in resolution of
Complaint No. 200J-0655-2004102931 dictated an agency obligation to
provide complainant with a workspace with ventilation to accommodate
her request. We find that the agency has not met this obligation.
To remedy a finding of breach, the Commission may order reinstatement
of the underlying complaint, or enforcement of the agreement's terms.
See 29 C.F.R. � 1614.504(c). In this matter, we conclude that the agency
is not in compliance with the March 16, 2004 settlement agreement, and
the proper remedy is to reinstate complainant's underlying EEO complaint.
Accordingly, the Commission REVERSES the agency's finding of no breach
of the settlement agreement and REMANDS this matter to the agency
for reinstatement of Complaint No. 200J-0655-2004102931 for further
processing.
ORDER
The agency is ORDERED to reinstate complainant's underlying EEO complaint
from the point processing ceased, in accordance with 29 C.F.R. � 1614.108.
The agency shall acknowledge to complainant that it has resumed processing
at the point processing ceased within thirty (30) calendar days of the
date that this decision becomes final. A copy of the agency's letter
of acknowledgment notifying complainant of the reinstatement of her
complaint must be sent to the Compliance Officer referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
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 19848,
Washington, D.C. 20036. 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 (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 (R0900)
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 (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
May 31, 2005
__________________
Date