0120101861
08-11-2010
Delores Holloway, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Delores Holloway,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120101861
Agency No. 200L05982008103926
EEOC No. 490-2009-00159X
DECISION
Complainant filed a timely appeal with this Commission from the Agency's determination (AD) dated March 22, 2010, finding that it was in compliance with the terms of the January 12, 2010 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.
ISSUE PRESENTED
Whether the Agency violated the terms of the January 12, 2010 settlement agreement.
BACKGROUND
The settlement agreement provided, in pertinent part, that:
(2.1)(2).The Agency will ensure the Complainant's Letter of Counseling dated July 9, 2008 is destroyed, and is not kept in her Official Personnel File, Human Resources Records or her supervisor's records. If future performance based actions or disciplinary actions are proposed, this document will not be used to support those actions.
(2.1)(3).The Complainant's Performance Improvement Plan will be destroyed, and is not kept in her Official Personnel File, Human Resources Records or her supervisor's records. If future performance based actions or disciplinary actions are proposed, this document will not be used to support those actions.
(2.1)(4).The Complainant's Letter of Admonishment she received on October 8, 2009, will be dismissed at the six (6) month anniversary of the letter if no further instances of misconduct occur. At that time, this record will be destroyed and will not be kept in her Official Personnel File, Human Resources Records or her supervisor's records.
(2.1)(5). The Agency will comply with its compensation time regulations with requests that may be made by the Complainant.
(2.1)(6). Accept Complainant's application for reassignment or change to lower grade and associated documents. . . .
By letter to the Agency dated January 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 issued her a negative performance evaluation based on documents that, pursuant to the instant settlement agreement, were supposed to have been removed from Agency files. In particular, Complainant alleges that on December 16, 2009, she received her performance rating that was based on conduct from her Letter of Admonishment dated October 8, 2009. As a result, Complainant alleged that the Agency breached provisions (2.1)(2), (2.1)(3), and (2.1)(4) of the settlement agreement. Complainant further contends that provision (2.1)(5) was not void for lack of consideration. Complainant also contends that she submitted her application for reassignment or change to a lower grade as agreed upon under (2.1)(6).
In its March 22, 2010 AD, the Agency concluded that it complied with provisions (2.1)(2) and (2.1)(3) because it destroyed the letter of counseling and the performance improvement plan and removed them from Agency files prior to the execution of the settlement agreement. In regards to provision (2.1)(4), the Agency found that this provision did not expressly state that the Agency could not use the October 8, 2009 Letter of Admonishment for Complainant's most recent performance appraisal. The Agency further indicated that provision (2.1)(4) expressly stated that the Letter of Admonishment was not to be removed and destroyed from Agency files until the six month anniversary of the letter. As such, the Agency found that its issuance of the performance appraisal on December 16, 2009, was not in breach since it was not required to remove and destroy the Letter of Admonishment until April 2010.
In regards to (2.1)(5), the Agency found that this provision was void for lack of consideration. In this regard, the Agency found that even though the provision was void, the rest of the agreement must be enforced without the provision. As to provision (2.1)(6), the Agency found that Complainant never submitted her application for reassignment or change to a lower grade as agreed upon.
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).
In the instant case, the settlement agreement is plain and unambiguous on its face. Provision (2.1) (4) expressly stated that the Letter of Admonishment was not to be dismissed and destroyed until the six month anniversary of the letter. As such, the Agency was not in breach when it used the information from that letter as a basis for the performance appraisal prior to the letter's six month anniversary. Further, the settlement agreement contains no provision prohibiting a performance appraisal pertaining to the information contained in the Letter of Admonishment. To the extent that Complainant wanted the agreement to include an Agency obligation not to use the Letter of Admonishment for any purpose prior to the six month anniversary of the letter, that requirement should have been reduced to writing and made a part of the settlement agreement.
In regards to provision (2.1)(5), the Commission determines that this provision of the settlement agreement is too vague and generalized to be enforced. We find that the Agency has incurred no obligation beyond what it is already obligated to do under EEOC regulations and discrimination statutes. In that regard, we find that provision (2.1)(5) is void for lack of consideration. However, given that consideration was exchanged through other provisions of the agreement, we do not find that the entire settlement to be invalid, but rather is modified without provision (2.1)(5). Complainant also contends that the Agency failed to comply with provision (2.1)(6), but provides no evidence that she ever submitted her application for reassignment or change to a lower grade as agreed upon.
CONCLUSION
Accordingly, the AD's finding that there was no breach of the 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
_____8/11/10_____________
Date
2
0120101861
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120101861