01a01746
06-16-2000
Maurice D. Levy, Complainant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.
Maurice D. Levy v. Department of Veterans Affairs
01A01746
June 16, 2000
Maurice D. Levy, )
Complainant, )
)
v. ) Appeal No. 01A01746
)
Togo D. West, Jr., )
Secretary, )
Department of Veterans Affairs, )
Agency. )
____________________________________)
DECISION
BACKGROUND
On January 25, 1996, complainant entered into a settlement agreement
with the agency, wherein the agency agreed to reassign complainant
to the Tallahassee Outpatient Clinic (TOPC) as "a staff surgeon with
accommodations when requested and supported by medical documentation,"
and to reimburse complainant's relocation expenses. On December 24,
1996, complainant alleged that the settlement agreement was breached
because the TOPC reassignment did not involve the duties of a surgical
position, but only the possibility that the position may evolve into a
surgical position. He argued that his current duties were, in essence,
those of a dermatologist. Complainant contended that he should perform
identical duties to those he performed as a surgeon at the agency's Lake
City Medical Center, and that since the position was different, he had
not been assigned to a bona fide surgical position. Based on the above
arguments, complainant contended that the agency did not negotiate in
good faith.
The agency found that no breach occurred, and complainant appealed to
this Commission. The Commission affirmed the agency, explaining that
if complainant wished to have duties identical to those of his prior
position, with work as complicated as performed in his prior position,
he should have negotiated for such specifications in the settlement
agreement itself. See Levy v. Department of Veterans Affairs, EEOC
Appeal No. 01972086 (February 24, 1999).<1>
Complainant then entered into a separate settlement agreement on February
20, 1997, concerning his reassignment to the TOPC. This second settlement
agreement, which complainant claims was breached in the present appeal,
provided, in pertinent part, that:
[Complainant] will remain as a staff surgeon on the surgical service
during the entire time that he is reassigned to the Tallahassee Outpatient
Clinic (TOPC), even if the surgery service at the Lake City VAMC were
to close. [Complainant] will retain his surgical privileges during his
reassignment at the TOPC in accordance with Clinical Executive Board
guidelines. The reassignment will be effective March 30, 1997.
[Complainant agrees that his performance of surgical duties and
endoscopies and conduct will be at at [sic] least a satisfactory level
. . . . When performing primary care [complainant's] performance will
be at at [sic] least a minimally satisfactory level.
The [agency] will support [complainant's] effort to build a sound surgical
presence at the TOPC, including provisions for IV sedation, regional
and general anesthesia. All necessary equipment will be provided.
On November 25, 1997, complainant notified the agency that it breached
the February 20, 1997 settlement agreement. When the agency failed to
issue a decision concerning the claim of breach within thirty-five days,
complainant appealed to this Commission on July 14, 1998. Due to a lack
of information in the record, the Commission was unable to determine
whether the agency breached several terms of the agreement; therefore,
the agency was ordered to conduct a supplemental investigation to gather
relevant evidence. See Levy v. Department of Veterans Affairs, EEOC
Appeal No. 01985667 (October 14, 1999).<2> The Commission also ordered
the agency to determine whether it failed to: (1) allow complainant to
remain as a staff surgeon; (2) support complainant's efforts to "build
a sound surgical presence;" and (3) provide all necessary equipment.<3>
After conducting the supplemental investigation, the agency determined on
December 1, 1999 that it had not breached the agreement. On December 20,
1999, complainant appealed to this Commission. The Commission accepts
this timely appeal for review. 64 Fed. Reg. 37,644, 37,659 (1999)
(to be codified at 29 C.F.R. � 1614.405); 64 Fed. Reg. 37,644, 37,660
(1999) (to be codified as 29 C.F.R. � 1614.504(b)).
In its December 1, 1999 final decision, the agency found that complainant
was allowed to serve as a staff surgeon, and that his clinical privileges
were approved February 6, 1999. Concerning the agency's support of a
"sound surgical presence," the agency explained that several months prior
to complainant signing the agreement, the Chief Medical Officer issued
several memoranda regarding "Expanding Outpatient Surgical Services
at TOPC." In these memoranda, the agency articulated plans to expand
the TOPC surgical services in three phases. The agency also found that
upon complainant's reassignment, a "full surgery nursing complement
[was provided] to the surgery program" with the hiring of an "OR/PACU"
(operating room/post anesthesia care unit) registered nurse (RN) in
January 1998, and an endoscopy trained licensed practical nurse (LPN)
in May 1998.
Concerning equipment, the agency found that the Chief Medical Officer's
November 19, 1997 plan for expansion included a list of equipment
required to implement the first two phases of expansion. When a new
interim director was hired in March 1998, he issued a document entitled
"Plan for TOPC program" containing "[complainant's] revised list of
equipment needs for phases one and two . . . ." The agency also found
that complainant was provided with all of the equipment requested.
On appeal, complainant argues that he has not been provided the equipment
or personnel required to perform intravenous (IV) sedation, regional
or general anesthesia, despite the plan providing for the performance
of procedures requiring IV sedation, with or without local anesthetic.
Complainant admits that a plan was adopted in April 1998, to expand
the surgical practice in the TOPC, but argues that no equipment has
been purchased or additional personnel hired since the plan's adoption.
With regard to IV or conscious sedation, complainant contends that the
new director has no intention of honoring the plan and was not aware of
the settlement agreement. Complainant attached an affidavit from the
Chief of Surgery for the entire South Georgia/North Florida Veteran's
Healthcare System, stating that he was unaware of any settlement agreement
involving complainant, and had no information regarding the specifics
of the agreement.
Concerning his status as a staff surgeon, complainant contends that he
is not being given the opportunity to perform general surgery duties.
Complainant argues that as a general surgeon, he should be performing
complex procedures with an anesthesiologist or anesthetist. He contends
that he does not have access to the resources or personnel necessary
to perform complex procedures, and also that he has been saddled with
numerous non-surgical duties. Complainant explains that he is required to
"prescreen orthopedic and neurological consults . . . update the surgery
computer programs, reduce waiting times by assisting with unscheduled and
primary care patients, and enhance the use of outreach access points."
Complainant argues that the agency requires him to spend twenty-eight of
his forty hours screening patients, working in the primary care clinic,
and working in the flexible sigmoidoscopy, none of which are duties
usually carried out by general surgeons. Complainant also argues that
these duties conflict with the agency's own "Functional Statement for
General Surgeons." Complainant contends that when performing procedures,
he has been limited to dermatological lesion removals, effectively
forcing him to work as a dermatologist, not as a general surgeon.
The record includes several documents concerning implementation of the
TOPC surgical service. By memo dated November 4, 1996, the expectations
for the surgery program were outlined. They included, inter alia,
establishing a surgery evaluation clinic, a lesion removal clinic,
a flexible sigmoidoscopy clinic, and consultation with primary care
patients. In another memo, dated November 6, 1996, plans for expansion
of TOPC surgical services were established; including the weekly time
line complainant referred to on appeal (requiring 28 of 40 hours a
week in non-surgical duties). A third memo concerning the expansion
of surgical services, dated December 31, 1996, outlines three phases
of implementation. Phase I involved "local or no anesthesia required,"
phase II concerned "conscious sedation and local anesthesia," and phase
III involved "general anesthesia, same day surgery." Under the plan,
phase I would continue "until the backlog of simple procedures is removed
. . . ."
The record also contains a memorandum to complainant dated October 20,
1997, stating that complainant must "develop and implement a surgical
program" at the TOPC. The memo instructed complainant that the TOPC
surgical service should include, "cases which would require general
anesthesia, spinal anesthesia, or intravenous sedation." The memo also
informed complainant that "one Nurse anesthetist (two days per week), on
full time OR/PACU Registered Nurse, and one full time LPN . . ." were
"available to [complainant]." By letter dated November 19, 1997,
complainant and the TOPC Chief Medical Officer requested additional
nursing support and equipment. In a memo dated December 10, 1997, the
Director explained that complainant's equipment needs were for phase II
of the implementation plan; "all phase I equipment is either on hand
or ordered except for the hand held Doppler, which [we are] checking
into now."
A revised plan was signed April 2, 1998, outlining the expansion of the
TOPC surgical service. This document states that phase I is "already
well underway," and that phase II would begin when appointments were
available no more than 10 days in advance (for several different clinics).
This plan also explained that, "in order to maintain skill levels, the
TOPC surgeon is authorized to utilize the Lake City operating room to
perform more complex surgical procedures within granted privileges on
TOPC patients."
The record also includes a copy of complainant's application to have
his surgical privileges renewed for 1997-1999.
The record further contains an affidavit from the Chief Medical Officer
of the TOPC. The Chief claimed that complainant was transferred to the
TOPC as a primary care-giver, and to establish a sound surgical presence.
The Chief explained that an OR/PACU RN, and an endoscopy-trained LPN were
hired in 1998, to assist complainant in surgical procedures. He further
detailed how complainant was not required to take a limited number of
patients, but rather was allowed to take as many elective procedures as
he could perform within one-hour before the clinic closed at 4:30 p.m.
He was to take emergency cases as necessary. The Chief explained
that while in phase I of the implementation plan, complainant had a
full complement of support staff, and "a newer faster sigmoidiscope."
Phase II equipment would not be purchased until it was necessary; the
chief explained that "there was no need for a warranty to run with the
equipment in the box." Concerning complainant's access to surgical
facilities, the Chief stated that complainant was given repeated
opportunities to perform procedures on TOPC patients at the Lake City
Medical Center, but never took advantage of those opportunities.
The Chief further intoned that at the time complainant took his position,
the TOPC surgery program "was embrionic." He notes that complainant
agreed to clear the backlog of simple, often dermatological cases prior
to proceeding on to more complicated surgeries. He also contends that
80 - 90%of complainant's work load at his prior position consisted of
the same simple procedures he now performs at the TOPC.<4>
ANALYSIS AND FINDINGS
Volume 64 Fed. Reg. 37,644, 37,656 (1999)(to be codified and hereinafter
referred to as 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 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).
In the instant case, complainant has retained his surgical privileges,
and serves as a staff surgeon at the TOPC. Further, the agency clearly
supported complainant's attempts to build a "sound surgical presence."
The February 20, 1997 agreement is silent as to what the agency must
do to support complainant's efforts to establish a surgery program, and
evidence reveals that the agency has made plans for the implementation of
the surgical program, has revised its plans when needed, and has allocated
resources as the plans progress. When complainant and the TOPC Chief
requested additional nursing staff in late 1996, their requests were
met in early 1998.
Complainant also contends that the agency breached the agreement
by giving him non-surgical duties. This issue was addressed in the
context of his prior settlement agreement, and has not changed in the
more recent February 20, 1997 agreement. The new agreement does not
prohibit the agency from assigning duties outside those outlined in the
"Functional Statement for General Surgeons." Complainant's position does
not even carry the title of "General Surgeon," but rather that of "Staff
Surgeon." It is clear from the agreement that complainant's duties must
include primary care, endoscopies, and surgical duties; otherwise, his
performance in those areas would not have been mentioned in the agreement.
Further, the plans for his position provided that the early stages of
complainant's practice would be confined mainly to minor procedures,
including the removal of skin lesions. Complainant was aware that the
TOPC staff surgeon position required these duties before he signed the
February 20, 1997 settlement agreement, and yet he did not negotiate to
change these duties. Moreover, complainant never availed himself of the
opportunity to perform more complex surgeries at the Lake City operating
room, despite two agency documents authorizing him to do so. The agency's
actions did not constitute breach of the settlement agreement.
CONCLUSION
Accordingly, the agency's findings are AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)
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:
June 16, 2000
____________________________
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_______________ __________________________
Date
1Complainant's request that the Commission reconsider this decision is
pending a separate decision in EEOC Request No. 05990432.
2Complainant's request that the Commission reconsider this decision is
pending a separate decision in EEOC Request No. 05A00175.
3In his initial notice of breach, complainant also claimed that the agency
breached the agreement by failing to provide him with an evaluation.
The Commission found no breach in that regard. See Levy v. Department
of Veterans Affairs, EEOC Appeal No. 01985667.
4Complainant does not dispute that most of his work in his prior surgical
position (as Chief Medical Officer) involved the same procedures, but
argues that he was unable to perform more complicated surgeries because of
the time taken for his administrative responsibilities. He also contends
that a fundamental difference exists from his prior position because he
is evaluating and removing lesions in an exam room, rather than being
brought in as a consultant to remove lesions in the operating room.