0120102232
08-25-2010
Daisy P. Brown, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Daisy P. Brown,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120102232
Agency No. 200J05392009101904
DECISION
Complainant filed a timely appeal with this Commission from a final decision (FAD) by the Agency dated March 26, 2010, finding that it was in compliance with the terms of the December 15, 2009 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
The settlement agreement provided, in pertinent part, that:
(a) That Complainant shall be granted a lump sum payment of $5,000 (five thousand dollars and zero cents) for aggravation and stress related to the filing and/or processing of the aforementioned claim. Complainant shall be responsible for all applicable federal, local and state taxes with respect to the aforementioned lump sum payment.
(b) That the Medical Center shall compile a training program from Patient Business Service managers and/or supervisors with respect to the area of reprisal.
(c) That the Complainant shall have the opportunity to express any, and all, future concerns regarding the Assistant Chief, Patient Business to the Associate Director of the Medical Center. If Complainant is unable to obtain resolution then she may present these concerns to the Medical Director for review.
(d) That the Complainant shall not be subjected to reprisal for any protected activity, past present, or future.
(e) That if Complainant is subjected to reprisal, and such reprisal is timely and properly raised, the Medical center shall initiate prompt and remedial action with regards to such reprisal.
By letter to the Agency dated February 26, 2010, 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 had retaliated against her when she was called in to her supervisor's office to discuss an incident with two co-workers. Complainant asserted that she was accused of not re-scheduling patients when their scheduled clinic visits had been cancelled by a doctor or nurse practitioner, although the task was the responsibility of a co-worker. Complainant said that the matter was creating stress.
In its March 26, 2010 FAD, the Agency concluded it was not in breach of the agreement as it had complied in full with the terms of the agreement, including payment of $5,000 in January 2010, and the development of guidelines on reprisal that was distributed to managers and supervisors as part of an April 2010 training session. The Agency also noted that Complainant had not requested a meeting with the Associate Director to express any issues or concerns. However, the Agency determined that the new allegations of reprisal now raised by Complainant should be processed as new claims rather than as a breach of the agreement. The Agency and gave Complainant information on how to proceed with the matter.
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 Commission has previously held that a complaint which alleges reprisal or further discrimination in violation of a settlement agreement's "no reprisal" clause, is to be processed as a separate complaint and not as a breach of settlement. Bindal v. Department of Veterans Affairs, EEOC Request No. 05900225 (August 9, 1990); 29 C.F.R. � 1614.504(c). In the present case, we find that Complainant is raising new allegations of reprisal regarding incidents occurring subsequent to the settlement agreement. Therefore, the Commission finds that the Agency correctly found that it was not in breach of the agreement and that the new reprisal claims raised should be treated as a new complaint. To that extent, if Complainant desires to pursue the matter further, she should comply with the instructions for commencing a new action in the Agency's decision if she has not already done so.
Accordingly, the Agency's decision 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
August 25, 2010
__________________
Date
2
0120102232
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
4
0120102232