Complainant,v.Robert McDonald, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Aug 14, 2015

01-2013-2418-0500 (E.E.O.C. Aug. 14, 2015)

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

,
Complainant,

v.

Robert McDonald,
Secretary,
Department of Veterans Affairs,
Agency.

Appeal No. 0120132418

Agency No. 200I-V108-2011104986

DECISION
Complainant filed a timely appeal with this Commission from the Agency’s May 16, 2013 final
determination finding that it was in compliance with the terms of the 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.

BACKGROUND
Believing that the Agency subjected him to unlawful discrimination, Complainant contacted an
Agency EEO Counselor to initiate the EEO complaint process. On June 30, 2012,
Complainant and the Agency entered into a settlement agreement to resolve the matter. The
settlement agreement provided, in pertinent part, that the Agency agreed:

(4)(a) To place Complainant into a position at his current grade and step at the
Broward County Outpatient Clinic where he will perform administrative and
mental health duties and responsibilities. The final position description for
[Complainant’s] position will be completed sixty days (60) after his start day…

(c) To evaluate Complainant's performance and provide him with a Fully
Satisfactory performance evaluation rating and a supportive letter of
recommendation sixty (60) days after signing the settlement agreement.

(d) To maintain the impending letter of admonishment or reprimand to be issued to
Complainant in the Veterans Integrated Service Network’s (VISN) Human
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Resources Files. Six months after the issuance of the admonishment or
reprimand, the VISN’s Human Resources Office will destroy the letter and all
copies, including electronic copies, and ensure that no electronic copies of the
letter or no notation to the letter appears in the Complainant's e-OPF or any
other VA file.

(e) To restore sick leave used by the Complainant dating from January 2011 to the
present to Complainant's time and attendance record.

By letter to the Agency dated March 19, 2013, Complainant alleged that the Agency was in
breach of the settlement agreement. Specifically, Complainant, through his representative,
alleged that the Agency failed to appoint him into a position where he would perform mental
health duties and responsibilities, provide him a supportive letter of recommendation, and
restore his sick leave used from January 2011 to the present. Complainant’s representative
argued that the settlement agreement was ambiguous on its face and requested that the Agency
reinstate his complaint for further processing from the point at which processing ceased. In
addition, Complainant’s representative requested reimbursement for all costs and out of pocket
expenses associated with this breach allegation.

In its May 16, 2013 final determination, the Agency concluded that it had not breached the
settlement agreement. As an initial matter, the Agency recognized that paragraphs (7) and (10)
in the agreement did not comply with Commission Regulations. These paragraphs state that
Complainant shall contact the Agency Regional Counsel Attorney prior to filing a breach claim
and provide a 10-day opportunity period for the Agency to correct the issue, and further, that
Complainant would request mediation in an effort to resolve the alleged breach. The Agency
found, however, that Complainant should have known that as of August 29, 2012, that he had
not received a recommendation letter. Additionally, Complainant was reassigned to a Special
Assistant position at the Broward County Outpatient Clinic effective August 12, 2012, under a
position description dated July 19, 2012. Therefore, Complainant should have known that he
was not performing mental health duties by at least October 2012. Complainant did not raise
his breach claim until March 2013. The Agency stated that if Complainant was dissatisfied
with his assignments and management's failure to provide him with the letter, he had an
obligation to exercise due diligence and raise his claims within the 30-day time limit. As a
result, the Agency dismissed the breach of settlement agreement claim as untimely.

The Agency next assumed arguendo that Complainant’s claims were timely raised and found
that it was nonetheless in compliance with the settlement agreement. Specifically, as to
provision 4(a), the Agency noted that a review of the record revealed that the Agency had not
incorporated mental health duties into Complainant’s position description. The Agency found,
however, that a series of intervening events occurred that now make it impossible for the
Agency to remedy this failure. For example, the Agency stated it was unable to assign
Complainant mental health clinician duties because Complainant had not served in the capacity
of a clinician for several years and he would need to re-establish his clinical competency under
the proctorship of a practicing clinical psychologist. Nonetheless, prior to raising his breach
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claim, Complainant voluntarily requested and was granted a transfer to a lower-graded
Contract Specialist position at the Dorn VA Medical Center in Columbia, South Carolina. As
a result of his decision to relocate outside the jurisdiction of the VA Miami Healthcare System
and accept a position completely unrelated to that of a clinical psychologist, management could
not revise his position description to include the mental health duties. The Agency found that
it was impossible for this aspect of provision (4a) to be performed, and therefore it had been
rendered void under the doctrine of impossibility.

With respect to provision 4(c), the Agency acknowledged that Complainant was not provided a
supportive letter of recommendation within the 60-day time limit; however, once notified of
the error, the Agency provided a supportive letter reflecting Complainant’s work
accomplishments on March 18, 2013. Regarding provision 4(d), the letter of admonishment
that was issued to Complainant on August 10, 2012, was never placed in his personnel folder,
but rather maintained in the VISN 8 Network Office, Human Resources Service for a six-
month period, after which all copies were destroyed.

Finally, as to provision 4(e), the Agency calculated 1,848 hours needed to be restored to
Complainant’s leave account. The Agency initially restored 1,117 hours and confirmed that
the remaining 731 hours of sick leave was restored to Complainant’s leave account as of April
5, 2013. The Agency noted that that this provision did not specify a time period by which the
Agency had to comply; however, it determined that this obligation was fulfilled within a
reasonable amount of time. Accordingly, the Agency found that it had not breached the
settlement agreement, and therefore, there was no need to address Complainant’s request for
reimbursement of expenses incurred in raising the breach claims. The instant appeal followed.

CONTENTIONS ON APPEAL
On appeal, Complainant contends that the Agency breached the settlement agreement and that
the Agency’s investigation into his breach claims was one-sided. Complainant disputes that his
breach allegations are untimely and claims that the settlement agreement language is
ambiguous. Complainant notes that the Agency admitted to failing to include “mental health
duties” into his position description. With regard to the supportive letter of recommendation,
Complainant claims that the correspondence drafted was insufficient to rise to the level of a
supportive recommendation. Further, Complainant argues that the Agency failed to inquire
into how much sick leave he believed he was due and failed to ask if he accepted the amount it
restored. Complainant requests that the Commission find that the Agency breached the
settlement agreement and award him fees and costs associated with filing the breach claim.

ANALYSIS
In its Letter of Determination, the Agency determined that Complainant’s breach claim was
untimely. The Agency found that pursuant to the settlement agreement, it had until October
11, 2012 to finalize Complainant’s position description to include mental health duties in
accordance with provision 4(a). In addition, the Agency was required to produce a supportive
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letter of recommendation by August 29, 2012. Further, the Agency agreed to destroy the
letter of admonishment within six months of the agreement, which was January 30, 2013.
Finally, while the agreement did not provide a specific time frame for restoration of sick leave,
it may be construed as giving the Agency a reasonable time in which to comply. The record
establishes that Complainant did not pursue his breach claims until almost four months after he
should have known that at least provision 4(a) of the agreement had been breached. As a
result, the Agency reasoned that his breach claim was untimely. The Commission agrees.
Pursuant to the Commission's regulations, Complainant was to raise the breach within 30 days
of when he knew or should have known of the alleged noncompliance. See

29 C.F.R.
§ 1614.504(a). Complainant has presented no evidence of extenuating circumstances which
would warrant an extension of the time frame for alleging breach. Accordingly, the
Commission finds that Complainant’s breach claims were untimely raised.
Even assuming that Complainant timely raised his breach claims, the record establishes that the
Agency took actions to cure the alleged breaches by providing the supportive letter of
recommendation, destroying the letter of admonishment, and restoring sick leave. The
Commission notes that Complainant’s voluntary act of requesting a transfer to a new position
outside of the jurisdiction of the VA Miami Healthcare System and completely unrelated to the
duties of a clinical psychologist was an intervening event that made changing his position
description impossible. Therefore, the Commission AFFIRMS the Agency's determination.
Since Complainant was not a prevailing party in this case, he is not entitled to any relief.

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
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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 (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 Complainants 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 14, 2015
Date