0120150362
03-11-2015
Complainant, v. Robert McDonald, Secretary, Department of Veterans Affairs, Agency.
Complainant,
v.
Robert McDonald,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120150362
Agency No. 2001-0544-2014100932
DECISION
Complainant filed a timely appeal with this Commission from a final decision by the Agency dated September 25, 2014, finding that it was in compliance with the terms of a February 12, 2014 settlement agreement. See 29 C.F.R. � 1614.402; 29 C.F.R. � 1614.504(b); and 29 C.F.R. � 1614.405.
BACKGROUND
On February 12, 2014, Complainant and the Agency entered into a settlement agreement to resolve a matter which had been pursued through the EEO complaint process. The settlement agreement provided, in pertinent part, that the Agency agrees to:
1. Provide the Aggrieved/Complainant feedback within one week following receipt of issues or concerns he raised.
2. Ensure Aggrieved/Complainant receives adequate training on PE studies and CT training procedures to satisfy standard department criteria for CT examinations.
3. Rotate crash cart duties monthly amongst the staff.
By e-mail to the Agency dated June 6, 2014, Complainant alleged breach. Specifically, Complainant alleged that the Agency breached the settlement agreement because he missed the CT training through no fault of his own.
In its September 25, 2014 final decision, the Agency found no breach. The Agency reasoned that the Chief of Radiology and Nuclear Medicine Service provided a statement that in regard to provision 1, he discussed several issues with Complainant which included training on PE studies and the rotation of crash cart duties. The Chief further stated that on March 12, 2014, Complainant was trained by CT/DRT Supervisor in compliance with provision 2 of the agreement; and that in 2014, Complainant was included in the midnight crash rotation in compliance with provision 3.
The Agency also noted that the CT/DRT Supervisor (Supervisor) stated that Complainant was trained on a number of areas, in compliance with provision 2. The Supervisor further stated that on June 26 and 30, 2014, Complainant received training on CTA Chest studies. Furthermore, the Supervisor stated that Complainant was offered additional training on March 12, 2014, April 7, 2014 and June 6, 2014, but he stated that he was unable to attend.
On appeal, Complainant does not make any new arguments.
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).
The Agency complied with the terms of the settlement agreement. The record contains a copy of the Chief's memorandum dated May 21, 2014. Therein, the Chief stated that Agency management complied with provisions 1 - 3. Specifically, the Chief stated that following the signing of the agreement, he met with Complainant to discuss a number of issues which included training on PE studies and the rotation of crash cart duties. In support of his assertions, the Chief provided a document titled "4-Midnight Crash Cart Rotation 2014" which showed Complainant was assigned for the following months: February, April, June, August, October and December 2014.
Moreover, the Chief also stated that on March 12, 2014, Complainant was trained by the Supervisor.
The record contains a copy of the Supervisor's e-mail in response to the EEO Specialist's questions. Therein, the Supervisor stated that "I did a tutorial with [Complainant] and explained the anatomy of the chest, plus pointed out the Pulmonary Arteries that he would use for his bolus tracker, on March 12, 2014. Then, we discussed the protocol for the CTA Chest for Pulmonary Embolus including the scanning parameters, injection rate, placement of the ROI for the bolus tracker, post processing, what images to send to Vista, etc. We did have an ER patient, but he was unable to come scan the patient. Since then, I have told [Complainant] to call me and I will come in from home to do a patient with him. I have also asked [employee] to call him if she gets one between the hours of 4-8pm, since she works this shift."
The record also contains a copy of the Supervisor's memorandum dated September 24, 2014. Therein, the Supervisor stated that Complainant "received refresher training on CTA Chest studies by [employee] on June 26, 2014 and June 30, 2014. [Complainant] was offered additional refresher training on June 6, 2014 and said he was too busy. Additional training was also offered on April 7, 2014 and March 12, 2014 and [Complainant] said he was too busy to come."
The Agency's finding of no breach of the February 12, 2014 settlement agreement is AFFIRMED.
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 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
March 11, 2015
__________________
Date
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0120150362
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120150362
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