Complainant,v.Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Feb 21, 2013

0120111821 (E.E.O.C. Feb. 21, 2013)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

,
Complainant,

v.

Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.

Appeal No. 0120111821

Agency No. 2004-0540-2006103357

DECISION

Complainant filed an appeal with this Commission from a final decision by the Agency finding
that it was in compliance with the terms of the settlement agreement into which the parties
entered. For the following reasons, the Commission AFFIRMS the Agency’s final decision.

BACKGROUND

Complainant and the Agency entered into a settlement agreement on February 1, 2010. The
settlement agreement provided, in pertinent part, that:

(1) Complainant's performance appraisals and proficiency reports will be revised
within 30 business days as follows:
a. The Agency agrees to appraise [Complainant’s] annual proficiency ratings
for 2007-2009 as “Outstanding” in all categories. Specifically, proficiency
reviews for the periods of 8/1/07 - 9/30/07, 10/1/07 to 9/30/08; and 9/08 to
10/1/09 will be rated “Outstanding.”
b. The Agency agrees to raise [Complainant’s] Executive Career Service
(EXECUTIVE CAREER FIELD) rating for 4/1/03 – 9/30/04 (FY 2004) to
“Outstanding” in all categories.
c. The Agency agrees to purge all records relating to the unsigned Executive
Career Field rating for Complainant for FY 2005 completed by Dr. [A]
from all Agency files. The Agency will replace that year’s rating with an
EXECUTIVE CAREER FIELD rating for 10/1/94 - 9/30/05 (FY 2005) of
“Outstanding” in all categories for the Complainant. The Agency will make
all reasonable effects to purge those records relating to the Complainant's
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performance and will provide copies of such records to Complainant but no
later than 30 days after the effective date of this agreement.
d. The Agency will change the evaluation period for the 7/6/06 - 9/30/07
proficiency review evaluation completed by Dr. [B] to the period of time
Complainant was under his supervision, 8/1/06 - 9/30/07.
e. The Agency agrees to appraise [Complainant’s] performance as
“Outstanding” for the period 10/1/05 - 7/31/06 EXECUTIVE CAREER
FIELD in all categories.

(2) Complainant will provide a proposed narrative for the “Outstanding” ratings in
the EXECUTIVE CAREER FIELD/proficiency reviews mentioned in paragraph
2 to the Chief, Human Resources at the Louis A. Johnson VA Medical Center
within 10 business days of the effective date of this agreement

(3) The EXECUTIVE CAREER FIELD evaluations and proficiency reviews will be
completed and signed by the appropriate supervisors and Complainant within 30
days of the effective date of this agreement. A copy of these evaluations and
reviews will be given to the Complainant and a copy will be placed in his human
resourses files where other evaluations are maintained for employee[s] in the
Agency.

. . . .

(6) Within five (5) business days of the effective date of this agreement,
Complainant will submit his narrative of his credentials and performance to the
Chief of Staff, Chair, Compensation Panel, for consideration. This narrative
will explain his level of experience as a physician in his specialty or
assignments, his accomplishments as a physician in the specialty and any prior
experience as a physician with VHA and any other relevant information.
. . . .

(9) The Agency agrees to give Complainant priority placement in the event of an
authorized Tier 2 vacancy in the Mental Health Service at the Louis A. Johnson
VA Medical Center, Clarksburg, WV. The Complainant will express an
interest in the position (substance abuse or another area within mental health),
after being notified of the vacancy by the Agency. The priority placement will
allow Complainant to be noncompetitively reassigned to the vacant position to
which he applies, as a priority placement before any other physician. The
[Complainant] must be in good standing with all state licensing and credentialing
requirements at the time priority placement is offered. This priority placement
offer will remain in effect for one (1) year following the effective date of this
Agreement.

. . . .
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(24) If the Complainant believes at any time that the agency has failed to adhere to
the terms of this agreement he must follow the procedures set forth in 29 CFR
1614.504 “Compliance with settlement agreement and final actions,” or
successor provision. Section 1614.504 (a) provides that “complaint must notify
the Agency's EEO Director in writing of the alleged noncompliance within 30
days of when the complainant knew or should have known of the alleged
noncompliance” and that the complainant “may request that the terms of this
agreement be specifically implemented, or alternatively that the complaint be
reinstated for further processing from the point processing ceased” as a result of
this agreement. . . .

The settlement agreement also provided that Complainant would be credited with 10 days of
sick leave, be paid over $100,000 in compensatory damages, and be paid $70,000 in attorney’s
fees.

By letter to the Agency dated February 17, 2011, Complainant alleged that the Agency was in
breach of the settlement agreement. Specifically, Complainant alleged that the Agency failed
to comply with provisions (1)(b), (c), and (e). Complainant stated that the performance
appraisal and proficiency report were completed, but in an untimely manner. Complainant
noted that the Agency’s actions were to be completed within 30 days; however, the relevant
appraisals and reports were dated July 2, 2010. Additionally, Complainant alleged that the
Agency breached provision (9) of the agreement, in that the Agency authorized a Tier 2
position for another doctor as a non-competitive position in Mental Health Services in March
2009.

In its final decision, the Agency noted that Complainant did not raise a breach allegation until
February 17, 2011, more than a year from the date the agreement was signed. Thus, the
Agency determined Complainant’s breach allegation should be dismissed for untimely pursuit.
Alternatively, the Agency noted that with regard to provision (1), the delay in providing
Complainant his appraisal was due to Complainant’s delay in giving the Agency the supporting
language that was agreed upon in the agreement. The Agency noted that once Complainant
gave the Agency the information, his appraisals were completed within 30 days of the
Agency’s receipt, which it stated was evident by Complainant signing each appraisal with the
date of May 24, 2010. In addition, the Agency determined it did not breach provision (9) of
the agreement. The Agency noted that there has been no other Tier 2 position effectuated
since the signing of the agreement.

ANALYSIS AND FINDINGS

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
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(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 present case, we find the Agency properly determined that Complainant’s breach
allegation regarding provision (1) was untimely raised. The revisions to Complainant’s
performance appraisals specified in the agreement were to occur within 30 business days of the
effective date of the agreement. The settlement agreement was signed on February 1, 2010.
The record reveals that Complainant signed performance appraisals for FY 2007, FY 2008,
and FY 2009 on May 24, 2010. Complainant claims that the relevant performance appraisal
and proficiency report relating to provisions (1)(b),(c), and (e) were not completed until July 2,
2010. We find Complainant knew of the alleged breach, at the latest on July 2, 2010;
however, he did not raise his breach claim with the Agency until February 7, 2011. Thus, we
find the claim regarding a breach of provision (1) was untimely raised.

With regard to provision (9), the Agency agreed to give Complainant priority placement in the
event of an authorized Tier 2 vacancy in the Mental Health Service at the Louis A. Johnson
VA Medical Center (LAJVAMC), Clarksburg, West Virginia for one year following the
effective date of the agreement. Complainant claimed breach of this provision and noted a Tier
2 position was given to a doctor in the Mental Health Service in March 2009. The record
contains a March 24, 2011 Memorandum for Record from a Human Resources Officer noting
that there has not been a Tier 2 vacancy in the service at the LAJVAMC from February 1,
2010, through February 1, 2011. The Agency noted that the only Tier 2 position filled in the
Mental Health Service at the LAJVAMC was staffed in 2009. We note a March 2009
placement would have preceded the effective date of the February 1, 2010 settlement
agreement. Complainant does not allege that there was a Tier 2 vacancy at the Mental Health
Service at the LAJVAMC after March 2009. Thus, we find Complainant failed to show a
breach of provision (9).

CONCLUSION

Accordingly, the Agency’s final decision is AFFIRMED.

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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 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), at 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

(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

(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
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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

February 21, 2013
Date