0120130048
03-08-2013
Erin R. Hundley, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Erin R. Hundley,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120130048
Agency Nos. 20030686-2011101057; 20030686-2010104339; 20030686-2011101057
DECISION
Complainant filed a timely appeal with this Commission from a final decision (FAD) by the Agency dated August 30, 2012, 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 worked as a Medical Support Assistant at the Agency's Dwight D. Eisenhower VA Medical Center facility in Leavenworth, Kansas.
On June 19, 2012, Complainant and the Agency entered into a settlement agreement to resolve the matter. The settlement agreement provided, in pertinent part, that:
(III) By signing this settlement agreement, the Complainant consents to reporting to the Leavenworth, Kansas campus of Eastern Kansas Health Care System beginning July 1, 2012. She understands that she will remain employed as a Medical Services Assistant and that her grade level will be GS-5, step 10. . . The Complainant understands that her grade level could change as a result of the boarding process, but it will not be less than GS-5, step 10.
(IX) The parties each state that they have read and understand this settlement agreement, that they agree to each and all of its terms, that this document contains all the terms of the agreement agreed to by the parties, and that they have knowingly and voluntarily entered into this agreement. This agreement constitutes the entire agreement between the parties and is intended to resolve all disputes.
By letter to the Agency dated July 25, 2012, Complainant alleged that the Agency was in breach of the settlement agreement, and she requested that the Agency specifically implement its terms. Specifically, Complainant alleged that the Agency breached the agreement when it reduced Complainant's pay, after advising Complainant that her eligibility for enhanced pay ended February 26, 2012. The Agency reasoned that Complainant voluntarily accepted reassignment to another position and, therefore, was no longer eligible for the enhanced pay, but, that due to an administrative oversight, the Agency failed to make the necessary adjustment. The Agency maintains that her pay grade was not reduced below the GS-5, step 10 level.
The Agency provided copies of the Notification of Personnel Action Standard Form 50, showing that Complainant's current pay grade remains at GS-5, step 10 level. In addition, the Agency provided documentation that Complainant's previous rate of pay was higher because it was based on a retained pay rate to which Complainant was no longer entitled.
In its FAD, the Agency concluded that there was no breach because it had complied with the requirement to preserve the grade and step. The Agency further maintained that the settlement agreement did not specify salary.
ANALYSIS AND FINDING
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, Complainant argues that "fairness and equity dictate disposition based on a consideration of the intent of the parties" and requests that the Commission go beyond the express wording and consider the intent of the parties. In opposition, the Agency argues that the agreement was silent as to salary.
In the instant case, we find that the agreement was unambiguous that the grade and level would be preserved, but it did not mention Complainant's salary. The Agreement is also clear on its face that the parties intend the written agreement to be fully dispositive of the parties' intent. While it is a logical extension to see salary as equivalent to grade, it is not a provision that we can read into the agreement at issue.
Accordingly, we AFFIRM the Agency's letter of determination finding no breach.
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 tends 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
March 8, 2013
__________________
Date
2
0120130048
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120130048