01a42873
03-11-2005
Linda M. Williams, Complainant, v. R. James Nicholson, Secretary, Department of Veterans Affairs, Agency.
Linda M. Williams v. Department of Veterans Affairs
01A42873
March 11, 2005
.
Linda M. Williams,
Complainant,
v.
R. James Nicholson,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A42873
Agency No. 200K-0550-2002104956
DECISION
Complainant filed an appeal with this Commission from a February 19,
2004 agency decision finding that it was not in breach of the terms of
the settlement agreement into which the parties entered.
The October 2, 2003 settlement agreement provided, in pertinent part,
that:
3. The Agency agrees to amend the Official Personnel Folder (OPF)
of the Complainant as follows that: (1) the reprimand action, dated
July 16, 2003, shall be removed; and, (2) the five (5) day suspension,
effective October 6 to 10, 2003, shall be changed to a "paper" suspension,
pursuant to alternative discipline. See attached Letter of Alternative
Discipline, incorporated hereto by reference thereof. The fourteen (14)
day proposed suspension, dated September 25, 2003, shall be withdrawn.
4. The Agency shall not initially file the five (5) day "paper"
suspension in the OPF, per alternative discipline, if the Complainant
applies for employment with another VA medical facility within ninety
(90) days of the date of this Settlement Agreement. If the Complainant
does not file for employment with another VA medical facility within this
ninety (90) [day] period, or in any case after a period of 180 days after
the date of this Settlement Agreement, then the Agency may file the five
(5) day "paper" suspension in her OPF.
5. The Complainant shall be reassigned to the Agency's Nursing Home
Care Unit (NHCU), wards 101-1/2 on the day shift, effective upon the
return of the Complainant from family leave.
. . . .
12. This Settlement Agreement does not constitute an admission of guilt,
fault or wrongdoing by any party.
In an October 17, 2003 letter, complainant alleged that the agency was
in breach of the settlement agreement. She also alleged that contrary
to the settlement agreement, she received disciplinary papers stating
that the reprimand and the five-day suspension were to remain in her
personnel file and the discipline was not rescinded. She alleged that
the disciplinary papers stated that complainant had admitted guilt to
verbally abusing a patient by calling him a troublemaker and her refusal
to provide medication to a patient and that these infractions would
remain in her personnel file. Complainant also stated that she received
a memorandum that indicated that she would not be promised a permanent
position on Ward 101-1/2 when she returned from family medical leave.
Complainant further alleged that she was to be moved from Ward 103-7 to
Ward 101-1/2 on the day shift from 7:30 a.m. to 4:00 p.m.
In a January 12, 2004 letter to the agency, complainant alleged that she
was informed by the Nurse Manager that she could not rotate to any other
shift, that she could not work outside of a day shift, and that she could
only work Mondays through Fridays as a result of the settlement agreement
and, also, because she was to be observed. Complainant also alleged
that on January 2, 2004, she was informed by the Nurse Manager that she
could be given Sundays and Mondays off as complainant had requested but
that she was to remain on the day shift for six months pursuant to the
settlement agreement and thereafter, she could apply for the evening
shift. Complainant also alleged that she was not given a step increase.
Regarding the discipline, complainant alleged that she never admitted
to abusing anyone, which she stated was covered under paragraph 12 of
the settlement agreement. Complainant also alleged that she was given
false documents to sign which she also alleged occurred in October 2003.
In its decision finding no breach, the agency stated that the July
16, 2003 reprimand referenced in paragraph 3(1), had been removed from
complainant's OPF and that on October 15, 2003, complainant's attorney was
provided with a copy of the removed reprimand. Regarding the five-day
suspension in paragraph 3(2), the agency stated that the suspension
was cancelled, removed from complainant's OPF and changed to a "paper"
suspension, and that complainant's attorney was provided with copies of
this information. The agency noted that there was no language in the
agreement requiring that the actions for which complainant received the
five-day suspension would not be identified in the "paper" suspension.
The agency also noted that complainant's attorney had accepted the
paper suspension as written and had signed the alternative discipline
agreement. Regarding paragraph 4 of the settlement agreement, the
agency stated that it would not file a five-day "paper" suspension in
complainant's OPF until the agency had confirmation that complainant
had not applied for employment with another agency medical facility
within 90 days of the date of the settlement agreement. With respect to
paragraph 5, the agency stated in its decision that since complainant's
return from family leave on November 28, 2003, she was assigned to the
day shift on NHCU Ward 101-1/2. The agency noted that complainant also
appeared to be alleging a breach of paragraph 12, but that the paragraph
was a standard provision routinely included in settlement agreements and
had no bearing on details of other provisions that required agency action.
The agency also noted in its decision finding no breach that complainant
had identified several incidents that occurred subsequent to the signing
of the settlement agreement, i.e., denial of assignments, denial of a
within-grade increase, denial of a right to an investigation, and having
been lied to by supervisors and co-workers. The agency stated that the
terms of the settlement agreement did not include any of these alleged
events and that these events were subsequent acts of discrimination. The
agency advised complainant to seek EEO counseling if she wished to pursue
such claims.
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).
The record contains a letter of reprimand, dated July 16, 2003, that was
issued to complainant for verbal abuse of a patient and for deliberate
refusal to carry out an order from a supervisor. These events occurred on
April 23, 2003. The record also contains a September 17, 2003 letter of
suspension for five days for deliberate failure to carry out instructions
regarding providing medication to a patient and abuse to a patient on
July 16, 2003. Also contained in the record is a Proposed 14 Calendar
Day Suspension, dated September 25, 2003, charging complainant with
deliberate refusal to carry out an order from a supervisor by failing
to meet with the supervisor as directed in August 2003.
The record contains an October 5, 2003 Memorandum from an agency attorney
to complainant's attorney. Therein, the agency attorney stated that
he was attaching draft letters regarding the suspension, the cover
letter regarding amending the five-day suspension to a five-day "paper"
suspension and a Letter of Alternative Discipline Agreement in Lieu of
a Suspension. The agency attorney noted that the draft letters were
the standard forms that complainant's attorney had reviewed prior to
the execution of the settlement agreement. The agency attorney also
noted that the Letter of Alternative Discipline Agreement in Lieu of a
Suspension would be the actual document placed in the OPF and that the
reprimand would be removed from the OPF, although the reprimand would
be cited as prior discipline in the Letter of Alternative Discipline
Agreement in Lieu of a Suspension. The agency attorney also stated that
if the Letter of Alternative Discipline Agreement in Lieu of a Suspension
was acceptable that it should be signed and returned to him. The agency
attorney also noted that the signature of complainant's attorney should
signify to complainant that she should sign the documentation.
The record contains an October 6, 2003 letter from the Associate
Chief Nurse to complainant stating that the proposed 14-day suspension
was rescinded. The record also contains an October 6, 2003 letter to
complainant rescinding the September 2003 five-day suspension. The record
contains a Request for Personnel Action form cancelling the five-day
suspension which had a proposed effective date of October 6, 2003.
The record also contains an October 15, 2003 letter to the EEOC
Administrative Judge from the agency attorney. The letter notes that the
"enclosed template" for the Letter of Alternative Discipline Agreement
in Lieu of a Suspension in the format of a "paper" suspension with pay
was provided to the complainant's attorney and complainant prior to the
execution of the settlement agreement and agreed to by all parties.
The agency attorney noted that the five-day suspension without pay
was to have commenced on October 6, 2003, but that complainant had
worked. The agency attorney also stated that Letter of Alternative
Discipline Agreement in Lieu of a Suspension had not been filed in
the OPF in compliance with paragraph 4 of the settlement agreement.
The agency attorney further stated that complainant had expressed some
dissatisfaction with the language of the letter of alternative discipline,
that the dissatisfaction was discussed with complainant's attorney and
complainant's attorney signed the Letter of Alternative Discipline in
Lieu of a Suspension.
The record contains a Letter of Alternative Discipline Agreement in
Lieu of a Suspension. The Letter of Alternative Discipline Agreement
in Lieu of a Suspension was signed by complainant's attorney, the
agency's attorney, and the Associate Director for PCS on October 8, 2003.
There was a signature line for complainant but complainant did not sign
the Letter of Alternative Discipline Agreement in Lieu of a Suspension.
A note on the Letter of Alternative Discipline Agreement in Lieu of a
Suspension indicates that complainant refused to sign the agreement.
The Letter of Alternative Discipline Agreement in Lieu of a Suspension
reflects that complainant was to be suspended for five days without pay,
pursuant to traditional discipline, but that complainant had agreed
to the issuance of the Letter of Alternative Discipline in Lieu of
a Suspension. The Letter of Alternative Discipline Agreement in Lieu
of a Suspension reveals that the sustained charges were deliberate
failure to carry out instructions and for abuse of a patient and,
also, that complainant had admitted guilt to the sustained charges.
The Letter of Alternative Discipline Agreement in Lieu of a Suspension
also reflects that complainant had been issued prior discipline in the
form of a reprimand, dated July 16, 2003. The Letter of Alternative
Discipline Agreement in Lieu of a Suspension further reflects that the
alternative discipline was to be given the same weight as the traditional
penalty, that the letter would be retained in complainant's OPF for six
years from the date of the Letter of Alternative Discipline Agreement in
Lieu of a Suspension and the Letter of Alternative Discipline Agreement
in Lieu of a Suspension would be removed after five years upon the
recommendation of complainant's supervisor with the concurrence of the
Associate Chief Nurse.
The record contains an October 6, 2003 Memorandum to complainant from
the Associate Chief Nursing Service which states that complainant was
approved for leave under the Family and Medical Leave Act from October
11, 2003 until November 25, 2003, and that she was expected to return
to duty on that date, unless additional leave without pay was approved.
The record also contains time records for complainant which reveal that
complainant returned to work from leave on November 28, 2003, and worked
the 7:30 a.m. to 4:00 p.m. shift.
The record contains a January 7, 2004 letter from the agency's Office
of Resolution Management to complainant. The letter reveals that the
letter of alternative discipline was not filed in complainant's OPF until
confirmation that complainant had not applied for employment within the
90-day period and that the agency would now file the five-day "paper"
suspension in complainant's OPF.
The record reflects that the settlement agreement was signed by both
complainant, her attorney of record, and the agency on October 2, 2003.
As an initial matter, the Commission notes that there is no indication
that complainant was coerced or otherwise manipulated by the agency,
or any party, in order to get her to agree to the settlement or that
the settlement was not entered into in good faith. We find that the
settlement agreement was knowingly and voluntarily agreed to by the
parties and is therefore binding. The record shows that the complainant
was represented by an attorney during the settlement negotiations and
that her attorney was a signatory to the settlement agreement which
referenced the Letter of Alternative Discipline Agreement in Lieu of
a Suspension. Complainant was also represented by the same attorney
at the time of the formation of the Letter of Alternative Discipline
Agreement in Lieu of a Suspension and at its signing. There is no
evidence that complainant had discharged her attorney or otherwise
withdrawn his authority to represent her during the formation of the
Letter of Alternative Discipline Agreement in Lieu of a Suspension and at
its signing. Moreover, the record reveals that the Letter of Alternative
Discipline Agreement in Lieu of a Suspension was shown to complainant's
attorney before the signing of the settlement agreement.
The Commission finds further that the agency is not in breach of the
terms of paragraphs 3 and 4 of the settlement agreement. We find that
the letter of reprimand was removed from complainant's OPF and that the
14-day suspension was rescinded and changed to a five-day suspension
and also removed from complainant's OPF. We also find that the agency
had not placed the five-day "paper" suspension into complainant's OPF
prior to the agreed upon time.
Complainant appears to be arguing that there should have been no reference
at all in her OPF regarding the reprimand, the suspension, and the
causes for the discipline, and that her OPF should have reflected only
the five-day "paper" suspension. We disagree. If complainant wanted
no reference to the reprimand or suspension in the Letter of Alternative
Discipline Agreement in Lieu of a Suspension, she should have had those
terms included in the settlement agreement.
The Commission also finds that there is no breach of paragraph 5 of the
settlement agreement. When complainant returned from leave, she was
working on the agency's NHCU Ward 101-1/2 on the day shift pursuant
to the terms of the settlement agreement. The settlement agreement
does not contain any terms stating that complainant was to receive a
permanent position on Ward 101-1/2. To the extent that complainant is
alleging that she is not being rotated, that she could not change shifts
for six months, or that she did not get certain days off, those terms
are not covered in the settlement agreement which provided only that
complainant work in the NHCU Ward 101-1/2 on the day shift. The agency
is in compliance with these terms.<1>
Complainant also appears to be arguing that somehow paragraph 12 was
breached because it protected her from any admission of guilt about the
disciplinary charges mentioned in the Letter of Alternative Discipline
Agreement in Lieu of a Suspension. Complainant's argument is misplaced.
Paragraph 12 serves only to explain that the signing of the settlement
agreement itself is not an admission of guilt.
Accordingly, the agency's finding of no breach is AFFIRMED.
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
March 11, 2005
__________________
Date
1The Commission notes that we have held
that where an individual bargains for a position without any specific
terms as to the length of service, it would be improper to interpret
the reasonable intentions of the parties to include employment in that
exact position forever. Holley v. Department of Veterans Affairs,
EEOC Request No. 05950842 (November 13, 1997).