Linda M. Williams, Complainant,v.R. James Nicholson, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionMar 11, 2005
01a42873 (E.E.O.C. Mar. 11, 2005)

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day proposed suspension, dated September 25, 2003, shall be withdrawn.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).