0120064594
03-25-2008
Jana L. Simmons, Complainant, v. Dr. James B. Peake, Secretary, Department of Veterans Affairs, Agency.
Jana L. Simmons,
Complainant,
v.
Dr. James B. Peake,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01200645941
Agency Nos. 200J-0592-2005102782;
200J-0592-200510103736;
200J-0592-200510102932
DECISION
Complainant filed a timely appeal with this Commission from a final
decision (FAD) by the agency dated June 30, 2006, that found it was
in compliance with the terms of the September 15, 2005, settlement
agreement (SA) between the parties. See 29 C.F.R. � 1614.402; 29 C.F.R. �
1614.504(b); and 29 C.F.R. � 1614.405.
Complainant, a Nurse Practioner, was employed at the agency's Central
Iowa Health Care System in Knoxville, Iowa. The underlying matter herein
arose when the agency withdrew her privileges to practice, and she filed
a formal complainant on July 17, 2004.
Thereafter, the parties entered into September 15, 2005, settlement
agreement to resolve her complaint. In Provision (6) of the SA, it
provided that: (i) the agency had no obligation to report that complainant
had been denied privileges; (ii) the agency's action was based on her
inability to meet educational requirements; (iii) complainant would
rescind her request for privileges; (iv) the agency would expunge all
records in regard to the denial of privileges in her Official Personnel
File (OPF) and the Credentialing and Privileging (C&P) file; (v) that
the agency would destroy complainant's entire Employee Medical Folder;
and (vi) the "Complainant shall receive a copy certified to be true and
correct of both files after the expungement is completed."
Having taken all others actions required to comply with the SA, the agency
mailed complainant copies of the aforesaid files. After complainant
received and reviewed those copies, complainant informed the agency
that it was in breach of the SA on March 15, 2006.2 Essentially,
complainant contended that, to be "true and correct," her files must
contain the documents unrelated to the withdrawal of her privileges
that had been in her file immediately prior to agreement on the SA.
To explain her position, she referred to events prior to execution of
the SA and statements made at that time. With her appeal, she sent
color-coded copies of the documents she asserted should have been part
of her file. The agency denied that it had breached the agreement.
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).
Based on a careful review of the SA and the file, the Commission finds
that complainant misapprehends the meaning of the language in Provision 6.
Said Provision required that the agency send her a copy of the documents
in her files after it expunged all documents related to her denial of
privileges, and that the agency certify that the documents constituted a
"true and correct" representation of the files. There is nothing in the
SA that allowed complainant to control the contents of the files; it only
provided that she is entitled to a "true and correct" copy of what is
extant in them. Further, as to her references to events and statements
before she signed the SA, once the parties signed the SA, all statements,
promises, and understandings, including orders of an Administrative Judge,
not specifically stated in the SA, fell away and have no force or effect.
Thus, the terms of the SA do not reflect that complainant was entitled to
more than an exact copy of her files, which she received in March 2006.
Therefore, the Commission finds that the agency did not breach the SA.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 (S0900)
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 (Z1199)
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
___03-25-2008_______________
Date
1 Due to a new data system, this case has been re-designated with the
above-referenced appeal number.
2 The agency stated that it had sent complainant's attorney copies of the
documents in her files on November 3, 2005, but complainant responded
that she had terminated the services of her attorney. The record is
unclear as to whether complainant notified the agency of such prior to
November 3, 2005.
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0120064594
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120064594