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

Equal Employment Opportunity Commission

Aug 5, 2015

01-2013-2383-0500 (E.E.O.C. Aug. 5, 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. 0120132383

Agency No. 2003-0376-2011100189

DECISION
Complainant filed a timely appeal with this Commission from the May 3, 2013 Agency 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
At the time of events giving rise to this complaint, Complainant was a former Program Support
Clerk at the Agency’s Records Management Center in St. Louis, Missouri. Believing that the
Agency subjected him to unlawful discrimination, Complainant filed two EEO complaints
raising several claims, including an allegation that the Agency discriminatorily terminated his
term appointment on October 31, 2010. On January 24, 2013, Complainant and the Agency
entered into a settlement agreement to resolve the matters. The settlement agreement
provided, in pertinent part, that:

(1) The Agency will appoint Complainant to the [permanent]
position of File Clerk, GS-305-4, in the Records Control
Division of the Agency's Records Management
Center…effective Sunday, January 27, 2013….(d)
Complainant will receive credit for purposes of retirement
eligibility and leave accrual, for his previous Federal service
in accordance with applicable laws and regulations.
Complainant will be entitled to previously accrued sick leave
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and annual leave in accordance with applicable laws and
regulations. To accomplish this, it is understood the Agency
will request a record of Complainant’s service with the United
States Postal Service.

By letter to the Agency dated March 10, 2013, Complainant alleged that the Agency was in
breach of the settlement agreement, and requested that the Agency specifically implement its
terms. Specifically, Complainant alleged that the Agency failed to properly adjust his leave
and earning statement to reflect previously accrued leave. Complainant claimed that he signed
the agreement believing that he would receive all accrued sick and annual leave that he would
have received while employed from the date he was terminated October 31, 2010, up until
when he was reinstated on January 28, 2013. In addition, Complainant believed that
September 15, 2011 would have marked his third year with the Agency; therefore, he was
entitled to six hours of annual leave and four hours of sick leave per pay period. Accordingly,
Complainant believed that he was entitled to 304 hours of annual leave and 232 hours of sick
leave.

In its May 3, 2013 final determination, the Agency concluded that it had complied with the
settlement agreement. In particular, the Agency noted that there were no terms in the
agreement that indicated that Complainant was to receive leave while he was not employed
with the Agency. Provision 1(d) did not state that Complainant was to receive all accrued sick
and annual leave, which he would have received while employed with the Agency; rather, the
agreement indicated that Complainant was only entitled to “previously accrued sick and annual
leave.” To that end, the Agency restored 28.5 hours of sick leave that Complainant had while
employed at the United States Postal Service. Complainant did not have any annual leave to
transfer. Accordingly, the Agency determined that it did not breach the settlement agreement.
The instant appeal followed.

CONTENTIONS ON APPEAL
On appeal, Complainant contends that he agreed to the settlement under the assumption that the
Agency would allot him the accrued annual and sick leave he would have earned had he not
been terminated. Complainant believes that the settlement agreement is misleading and not
what he and the Agency agreed he would receive. In addition, Complainant states that he
believed that the agreement would adjust his service computation date to his initial hire date of
September 15, 2008, and that based on that date, he should receive six hours of annual leave
and four hours of sick leave each pay period. Further, Complainant alleges that he was told by
his supervisor that he would not be allowed to volunteer for any jobs until after 90 days, which
led him to believe that he was on probation in violation of the settlement agreement.
Accordingly, Complainant requests that the Commission find that the Agency has breached the
settlement agreement.

The Agency responds that the record is clear that terms of the settlement agreement have not
been breached. The Agency notes that the agreement stated that Complainant would receive
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credit for his prior federal service and it is clear that the language was crafted to encompass his
employment with the Agency and the United States Postal Service. Contrary to Complainant’s
allegation, the agreement did not indicate that he would receive credit for the period of time
during which he was unemployed or not employed by a federal agency. Thus, the Agency
requests that the Commission find that it has complied with the settlement agreement.

ANALYSIS
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 (Dec. 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 (Aug. 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 (Dec. 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. Bldg. Eng’g Servs. Co.

, 730 F.2d 377 (5th Cir. 1984).
In the instant case, the Commission finds that the Agency fulfilled the provision of the
settlement agreement at issue. Specifically, the provision states that Complainant would receive
credit “for purposes of retirement eligibility and leave accrual, for his previous federal service
in accordance with applicable laws and regulations.” Documentary evidence reveals that
Complainant’s creditable service and service computation dates for leave and retirement
purposes were calculated taking into account Complainant’s previous service at the Agency and
with the United States Postal Service. Based on Complainant’s appointment and separation
dates, the Agency computed Complainant’s service computation date as June 17, 2009. The
Commission notes that the settlement agreement did not require the Agency to expunge
termination of Complainant’s previous term appointment. Thus, the Agency took
Complainant’s break in service into account when determining the proper service computation
date. The Commission finds that Complainant has not shown that the Agency breached the
settlement agreement by not providing him the proper service computation date for retirement
and leave purposes.

Additionally, the provision states that Complainant would be “entitled to previously accrued
sick and annual leave…[t]o accomplish this, it is understood the Agency will request a record
of Complainant’s service with the United States Postal Service.” The record again shows that
the Agency restored 28.5 hours of sick leave based on records it received from the United
States Postal Service. Complainant had no annual leave to transfer. Complainant believes that
he is entitled to leave that he would have accrued had he not been terminated; however, the
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settlement agreement does not contain any such agreement. The plain language of the
agreement states that the Agency would only restore leave that Complainant actually accrued
while federally employed, not any leave that he would have accrued had he not been
terminated. If Complainant wanted to recover leave that he would have accrued had he not
been terminated, he should have negotiated for such to be specifically included in the
agreement.

Finally, the Commission notes that, on appeal, Complainant raised a challenge for the first
time to provisions 1(b) and (c) which stated that his appointment would be to a permanent
position and that he would not be “subject to the completion of a trial or probationary period.”
Complainant claims that his supervisor told him that he would not be eligible to volunteer for
jobs until after 90 days, which led him to believe that he was on probation. Complainant did
not submit any evidence in support of this claim, including any evidence that he was prevented
from volunteering for a job or otherwise denied job opportunities. Consequently, the
Commission finds no persuasive evidence in the record that the Agency placed Complainant on
a probationary or trial period upon his appointment to the permanent File Clerk position.
Accordingly, the Commission AFFIRMS the Agency's final determination 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.
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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

Date
August 5, 2015