0120082787
09-04-2008
Dale J. Eckholm, Complainant, v. Dr. James B. Peake, Secretary, Department of Veterans Affairs, Agency.
Dale J. Eckholm,
Complainant,
v.
Dr. James B. Peake,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120082787
Agency No. 200I-0317-2002104172
DECISION
Complainant filed an appeal with this Commission from an agency decision,
dated May 1, 2008, finding that it was in compliance with the terms of the
May 12, 2003 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.
The settlement agreement provided, in pertinent part, that:
(2)b. That all paperwork and documentation related to complainant's
suspension of September 10, 2001 through September 19, 2001 will be
removed from Complainant's Official Personnel File at present and
held in abeyance, such documentation to reside in a separate file in
the Office of Regional Counsel, Agency's Representative in this cause.
If complainant has no incidences of unprofessional or discourteous conduct
as referred to in subparagraph 2a about during this one-year period,
such paperwork and documentation will be permanently removed from his
Official Personnel File.
By letter to the agency, dated March 19, 2008, complainant alleged that
the agency was in breach of the settlement agreement. Specifically,
complainant alleged that the records regarding a 2001 suspension, that
were to be permanently removed from his OPF, were included in an evidence
file and cited in a new suspension proposal. The 2001 suspension was
relied upon to justify the more severe discipline that was proposed,
in violation of the agreement. Further, complainant explains that
after telling management about the problem, the February 25 proposal was
rescinded. However, while the new proposed suspension, dated March 10,
2008, does not include any citation to the 2001 suspension, in all other
aspects it is identical to the earlier proposal. Complainant alleged
that the second proposal still improperly relies upon the 2001 suspension
evidence to justify the level of discipline.
In its May 1, 2008 decision, the agency concluded that it had complied
with the settlement and that "this dispute is more appropriately
raised as a subsequent act of discrimination rather than a breach
. . . claim." According to the agency, complainant was not charged with
any conduct infractions during the year after the agreement was entered.
Consequently, the 2001 suspension documents were removed from his OPF.
When the agency offered to either destroy the documents or send them to
complainant, complainant requested the latter.
However, the agency admitted that the corresponding evidence file for
the 2001 suspension, kept separately from complainant's OPF, was not
destroyed.1 Further, it acknowledges that the HR Chief "inadvertently
relied upon the evidence file . . . instead of the OPF." The agency
argues that although a "technical breach" occurred when the February 19,
2008 proposed suspension referenced the 2001 suspension, the matter was
timely cured when the new proposal was rescinded and revised. Lastly,
the agency reasoned that the dispute over the level of discipline for
the February 2008 proposed suspension should be the subject of a new
complaint.
On appeal, complainant reiterates his belief that the revised suspension
memo is identical to the first, except that the reference to the 2001
suspension has been deleted. In the first memo, argues complainant, the
agency used the 2001 suspension to justify the severe, fourteen-day level
of discipline. When the memo was revised, the paragraph citing the 2001
suspension was deleted, yet none of the reasoning or justification for the
fourteen-day suspension was appropriately modified. Complainant argues
that the agreement is still being violated as reflected by the higher
level of discipline included in the revised suspension memo.
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. Department of Defense,
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. Department 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. United States Postal
Service, 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, the agency itself admits that it "technically"
breached the agreement when the February 19, 2008 proposed suspension
memo referred to the 2001 suspension. In particular, the memo stated
"[t]his past record will be taken into account in determining proper
disciplinary action . . . ." The Commission agrees with the agency
that, although the settlement language did not specifically reference
the evidence file, citation to such evidence "defeated the purpose of the
settlement agreement, which ostensibly was to eliminate this disciplinary
action from [complainant's] record."
We do not agree, however, with the agency's assertion that the breach was
cured by the issuance of a corrected memo. As noted by complainant,
the revised March 2008 memo is identical to the original, but for
the removal of paragraph 5. In the original, the agency clearly states
that it would consider the 2001 suspension. Since both memos propose a
fourteen day suspension, the agency needs to provide evidence supporting
its assertion that the prior discipline was not considered in determining
the level of discipline in the revised proposal. The Commission finds
that the agency accurately noted that the purpose of the agreement was
"to eliminate this disciplinary action from [complainant's] record,"
and if the suspension is utilized to justify future discipline then the
intent of the settlement is defeated.
Consequently, the matter is remanded to the agency for a supplemental
investigation as to the justification for the level of discipline issued
to complainant in the revised memo of March 2008.
CONCLUSION
Accordingly, the agency's decision finding no breach is VACATED and the
matter is REMANDED to the agency for a supplemental investigation in
accordance with the Order below.
ORDER
The agency is ordered to conduct a supplemental investigation to develop
a sufficient factual record to determine whether the alleged breach was
cured. The supplemental investigation shall include, but is not limited
to, an affidavit from the agency official responsible for issuing the
March 2008 proposed suspension. Further, the evidence shall describe
the specific actions or incidents, as well as the relevant portions of
agency's table of penalties, relied upon to establish the appropriate
level of discipline.
Thereafter, but no later than forty-five (45) days after this decision
becomes final, the agency shall issue a new final decision on whether
or not it breached and cured the May 14, 2003 settlement agreement.
A copy of the new agency decision must be sent to the Compliance Office
as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0408)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the complainant. If the agency does not comply with the Commission's
order, the complainant may petition the Commission for enforcement
of the order. 29 C.F.R. � 1614.503(a). The complainant also has the
right to file a civil action to enforce compliance with the Commission's
order prior to or following an administrative petition for enforcement.
See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g).
Alternatively, the complainant has the right to file a civil action on
the underlying complaint in accordance with the paragraph below entitled
"Right to File A Civil Action." 29 C.F.R. �� 1614.407 and 1614.408.
A civil action for enforcement or a civil action on the underlying
complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c)
(1994 & Supp. IV 1999). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0408)
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), 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 19848,
Washington, D.C. 20036. 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 (R0408)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court within ninety (90) calendar days from the date
that you receive this decision. In the alternative, you may file a
civil action after one hundred and eighty (180) calendar days of the date
you filed your complaint with the agency, or filed your appeal with the
Commission. 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. Filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z0408)
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 that the Court appoint
an attorney to represent you and that the Court 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 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
September 4, 2008
Date
1 The agency notes that the agreement did not require the destruction
of the evidence file.
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0120082787
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120082787