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

Equal Employment Opportunity Commission

Jun 5, 2013

0120122594 (E.E.O.C. Jun. 5, 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. 0120122594

Agency No. 200I-0508-2004102131

DECISION

Complainant filed a timely appeal with this Commission from a final decision by the Agency
dated April 20, 2012, finding that it was in compliance with the terms of the settlement
agreement into which the parties entered.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Laboratory
Technician at the Agency’s Medical Center in Decatur, Georgia. Complainant contacted an
Agency EEO Counselor to initiate the EEO complaint process. On February 4, 2005,
Complainant and the Agency entered into a settlement agreement to resolve the matter. The
settlement agreement provided, in pertinent part, that:

9) In complete settlement and complete discharge of these complaints, the parties
agree as follows:

a. Agency will assign the Complainant “send out” duties with no weekend
rotations. The Complainant’s title, pay and position description shall remain as
the Medical Technician GS-6. Send out duties are defined as preparing patient
specimens for referral testing laboratories. The Complainant will process, label
and package specimens for send out daily. The Complainant will accession the
specimens and log all information about the patient sample into the hospital
computer system and/or the referral laboratory information system as needed.
The Complainant will enter/scan results on the patient specimens as received.
The Complainant will follow standard operating procedures outlined in the
specimen processing manual.
0120122594

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By letter to the Agency dated June 1, 2010, Complainant alleged that the Agency was in breach
of the settlement agreement. Specifically, Complainant contended that the Agency breached the
agreement by placing her under the supervision of a new phlebotomy supervisor and taking
away her assigned duties. In its decision, dated July 2, 2010, the Agency found that it did not
breach the settlement agreement as the agreement did not contain any provision for assigning
Complainant to a specific supervisor. The decision did not, however, address whether the
Agency had breached the settlement agreement with respect to Complainant’s allegation of
having her assigned duties removed. On appeal, the Commission vacated the decision and
remanded the matter back to the Agency for a supplemental investigation. v. Department
of Veterans Affairs, EEOC Appeal No. 0120111791 (February 6, 2012).

The Agency conducted a supplemental investigation, and issued a second decision, dated April
20, 2012, again concluding that it was in compliance with the settlement agreement.
Complainant makes no arguments on appeal.

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
(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 that the Agency has not breached the February 4, 2005 settlement
agreement. We find that the Agency correctly concluded that it has complied with the terms of
the settlement agreement with respect to Complainant’s assigned duties. The agreement states
that Complainant would be assigned to “send-out” duties, and would not be assigned any
weekend rotations. The record shows that the Agency has complied with both of these
provisions, as Complainant’s performance appraisal reflects that she was rated on send-out
duties, and her time and attendance records show that she has not been assigned to work
weekends. Accordingly, we find that the Agency has complied with the terms of the settlement
agreement.

0120122594

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CONCLUSION

We AFFIRM the Agency’s decision finding no breach of the settlement agreement.

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.

0120122594

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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

June 5, 2013
Date