0120171896
08-15-2017
Felton M.1 Complainant, v. Dr. David J. Shulkin, Secretary, Department of Veterans Affairs, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Felton M.1
Complainant,
v.
Dr. David J. Shulkin,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120171896
Agency No. 200H05522017101354
DECISION
Complainant filed a timely appeal with this Commission from a final decision (FAD) by the Agency dated April 6, 2017, 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 compliance action, Complainant worked as an Administrative Officer at the Agency's Dayton VA Medical Center facility in Dayton, Ohio.
On February 17, 2017, Complainant and the Agency entered into a settlement agreement to resolve an EEO matter. The settlement agreement provided, in pertinent part:
(1) In the Preamble: "the Parties to this agreement wish to fully and finally resolve and settle all claims between them arising out of all claims, complaints, and actions Aggrieved Person / Complainant has or may have against the Agency;"
(2a) "Complainant will be reassigned from his current position of Administrative Officer, GS-0301-11 within the Community and Public Relations Service to the position of Program Application Specialist GS-0301-11 within the Patient Business Service, effective immediately upon Medical Center Director or designee signature on this agreement;"
(4h) "If a binding determination is made that any term(s) of this Agreement is / are unenforceable, such unenforceability shall not affect any other provisions of this Agreement, and the remaining terms of this Agreement shall, unless prohibited by law, remain effective as if such unenforceable provisions(s) was / were never contained herein;" and
(5c) "The Aggrieved Person / Complainant is advised that (s)he has not waived any rights or claims that may arise after the date of the Agreement."
The Agreement was signed by the Medical Center Director or Designee on February 17, 2017.
Complainant was reassigned from his Administrative Officer position within the Community and Public Relations Service to the position of Program Specialist within the Patient Business Service, effective February 19, 2017.2 His salary and grade remained the same.
The record includes an email notification dated February 17, 2017, subject "Notification of Conversion of Leave, from the Chief, Community and Public Relations." The notification was issued by Complainant's former supervisor. The former supervisor advised Complainant that Complainant's "sick leave request has been converted to AWOL."
By letter to the Agency dated March 3, 2017, Complainant alleged that the Agency was in breach of the settlement agreement. Specifically, Complainant alleged that his former supervisor recently changed approved leave to absent without leave status and was trying to ruin his reputation.
In its April 6, 2017 FAD, the Agency concluded that it was in compliance because it had reassigned Complainant, effective February 19, 2017.
CONTENTIONS ON APPEAL
On appeal, Complainant states that the Agency breached the intent of the Agreement and cites to the Preamble language which states that the Agreement was intended to resolve all claims that Complainant may have with the Agency and particularly intended to resolve all claims of discrimination due to the hostility by his former supervisor.
In response, the Agency contends that the settlement agreement only required the Agency to reassign Complaint to the position of Program Application Specialist, which the Agency states that it did.
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 (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).
We further find that most of the Agreement's provisions are valid and enforceable.
Initially, we note, however, that, to the extent the Agreement stated that it waived "all claims, complaints, and actions Aggrieved Person / Complainant has or may have against the Agency," that language is invalid and unenforceable (emphasis added). That Preamble language could be construed as waiving future, unknown claims. It is axiomatic that parties may only agree to resolve actual existing disputes, not ones that post-date the Agreement.
Although we find that phase to be unenforceable, we construe that term severed from the remaining portions of the Agreement. This approach is consistent with the Agreement, that included a severability clause which expressed the intent of the parties that any provision found to be invalid "shall not affect any other provisions of this Agreement, and the remaining terms of this Agreement shall, unless prohibited by law, remain effective."
In the instant case, the Agreement expressly required the reassignment effective immediately upon the signing of the Medical Director or his designee and away from the supervision of his former supervisor. Consequently, the Agreement required two things: 1) the reassignment of Complainant away from the supervision of the Chief of the Community Affairs Division; and 2) the reassignment to be made effective on the same date that the Agreement was executed, which was on February 17, 2017.
Although the Agreement was signed on February 17, 2017, the reassignment was not made effective until two days later, on February 19, 2017. That constitutes our first finding of non-compliance. We also note that this was not a matter that required DFAS to execute any salary changes. There was no salary adjustment required and no explanation as to why the reassignment was not effected on February 17, 2017.
In addition, the record provides evidence that the former supervisor exercised authority over Complainant on February 17, 2017. The February 17th notice from the Chief of the Community and Public Relations Unit is itself sufficient evidence that Complainant's former supervisor continued to act as his supervisor on February 17th. That constitutes the second breach.
We find that the record supports Complainant's breach claim. We find that the Agency breached the Agreement. When we find a breach, we have two options: 1) require specific performance of the terms of the Agreement or 2) reinstate the underlying complaint.
Complainant did not specify clearly in his notice of breach or in his statement on appeal which remedy he preferred, we give Complainant the option, in accordance with the ORDER below, of either reinstating his underlying EEO complaint or specifically enforcing the terms of the Agreement. Further, because there was no monetary consideration, there is no monetary consideration to be returned in the event that Complainant seeks to have his underlying complaint reinstated.
Finally, to the extent that Complainant wishes to address new claims of discrimination or retaliation that arose after the execution of this Agreement, he should initiate EEO counseling with the Agency with regard to those claims.
CONCLUSION
According, we REVERSE the Agency's Breach Decision and REMAND the matter for further processing in accordance with the ORDER below.
ORDER
Within thirty (30) calendar days of the date this decision becomes final, the Agency is ordered to notify Complainant of his option to either return to the status quo prior to the signing of the settlement agreement or to obtain specific performance of the agreement. The Agency shall also notify Complainant that he has fifteen (15) calendar days from the date of his receipt of the Agency's notice within which to notify the Agency either that he wishes to return to the status quo prior to the signing of the agreement or that he wishes to allow the terms of the agreement to stand. Complainant shall be notified that in order to return to the status quo ante, if he received any monetary benefits, he must return any monetary benefits received pursuant to the agreement. The Agency shall determine its obligations due to Complainant, or return of consideration or benefits, if any, due from Complainant, within thirty (30) calendar days of the date this decision becomes final, and shall include such information in the notice to Complainant.
If Complainant elects specific performance, the Agency shall notify Complainant that the terms of the settlement agreement shall stand and the Agency will abide by all of the terms of the Agreement, including the provision reassigning him to the position of Program Application Specialist GS-0301-11 within the Patient Business Service.
If Complainant elects to reinstate his EEO complaint, the Agency shall resume processing the EEO complaint from the point processing ceased. The Agency is ordered to process the remanded claims in accordance with 29 C.F.R. � 1614.108 et seq. The Agency shall acknowledge to the Complainant that it has received the remanded claims within thirty (30) calendar days of the date of this decision. The Agency shall issue to Complainant a copy of the investigative file and also shall notify Complainant of the appropriate rights within one hundred fifty (150) calendar days of the date of this decision, unless the matter is otherwise resolved prior to that time. If the Complainant requests a final decision without a hearing, the Agency shall issue a final decision within sixty (60) days of receipt of Complainant's request.
The Agency is further directed to submit a report of compliance, as provided in the statement entitled "Implementation of the Commission's Decision." The report shall include supporting documentation verifying that the corrective action has been implemented. A copy of the Agency's letter of acknowledgment to Complainant and a copy of the notice that transmits the investigative file and notice of rights must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0617)
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 in the digital format required by the Commission, and submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g). 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 (M0617)
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. A party shall have twenty (20) calendar days of receipt of another party's timely request for reconsideration in which to submit a brief or statement in opposition. See 29 C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 � VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. Complainant's request may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 agency's request must be submitted in digital format via the EEOC's Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g). 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 (R0610)
This is a decision requiring the Agency to continue its administrative processing of your complaint. However, if wish to file a civil action, 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. 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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M. Hadden's signature
Carlton M. Hadden, Director
Office of Federal Operations
August 15, 2017
__________________
Date
1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website.
2 The record includes a Notification of Personnel Action, SF-50, with an effective date of February 19, 2017.
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