[Redacted], Dorothy M., 1 Complainant,v.Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Mar 16, 2023

Appeal No. 2022000198 (E.E.O.C. Mar. 16, 2023)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Dorothy M.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2022000198 Hearing Nos. 530-2021-00180X 530-2021-00158X Agency Nos. 200H-0542-2012103481 200H-0542-2015101302 200H-0542-2015104693 200H-0542-2018106398 DECISION Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission) concerning her complaints of unlawful discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. §621 et seq. The settlement breach claims are REMANDED for further processing. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Recreation Therapist, GS-10, with Recreation and Creative Arts Therapy, Physical Medicine and Rehabilitation, Geriatrics and Extended Care, Patient Care Services, Coatesville Veterans Affairs Medical Center (VAMC) in Coatesville, Pennsylvania. Complainant contacted an Agency EEO Counselor to initiate the EEO complaint process. 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. 2022000198 2 On August 14, 2012, Complainant filed a complaint (Agency No. 200H-0542-2012103481), which was subsequently amended, alleging the Agency subjected her to a hostile work environment on the bases of her race (Black), age (over 50), and in reprisal for prior EEO activity when: 1. On April 10, 2012, and on a daily basis, Supervisory Recreation Therapist (SRT 1), ordered Complainant to read all Physical Medicine and Rehabilitation emails. 2. On April 29, 2012, and on a daily basis, SRT 1 failed to give Complainant adequate time to complete administrative duties. 3. On May 10, 2012, SRT 1 threatened to charge Complainant two hours Absence Without Leave. 4. On July 17, 2012, SRT 1 threatened to charge Complainant one hour of Leave Without Pay. 5. On July 24, 2012, SRT 1 informed coworkers by email that Complainant was to be charged one hour of Leave Without Pay. 6. On July 24, 2012, SRT 1 required Complainant to complete patient documentation within 24 hours although policy requires documentation to be completed within three business days. Following an investigation on her complaint, Complainant requested a hearing before an EEOC Administrative Judge (AJ). On February 4, 2015, Complainant filed a second complaint (Agency No. 200H-0542- 2015101302) alleging the Agency subjected her to a hostile work environment on the bases of her race (Black), age (over 50), and in reprisal for prior EEO activity when: 1. On July 21, 2014, the Supervisory Recreation Therapist (SRT 2) sent Complainant an email instructing her not to forward emails to the Physical Medicine and Rehabilitation (PM&R) Program Manager and the SRT 3. 2. On July 21, 2014, SRT 2 accused Complainant of sending patient information to her home email address. 3. On August 4, 2014, SRT 2 refused Complainant’s request to meet with Recreational Therapist Assistant and Recreational Therapist to address complaints they had regarding Complainant’s customer service. 2022000198 3 4. On August 27 and October 27, 2014, SRT 2 failed to offer Complainant help or another alternative that would enable Complainant to complete her work in a timely manner when Complainant informed her that she was behind and needed help with documenting patients. 5. On October 29, 2014, SRT 2 failed to respond to Complainant’s written request for help with documenting patients. 6. On November 17, 2014, SRT 2 issued complainant a Warning of Unacceptable Performance - Notice of Opportunity Period letter for her untimeliness of patient documentation and did not offer her help or specific guidance to address the issue. 7. On December 1, 2014, SRT 2 placed Complainant on a performance improvement plan (PIP) because she violated a mental health policy for the timeliness of documenting patients. Following an investigation on her complaint, Complainant requested a hearing before an AJ. On November 4, 2015, Complainant filed a third complaint (Agency No. 200H-0542- 2015104693), which was subsequently amended, alleging the Agency subjected her to a hostile work environment on the bases of age (over 50), disability (lower back pain, sciatica, chronic migraine headaches, chronic anxiety, and panic attacks), race (Black), and in reprisal for prior protected EEO activity when: 1. On March 25, 2015, Complainant was not selected for the position of Recreation Therapist, GS-11 (temporary - not to exceed one year) as announced under vacancy ID number 1312384. 2. On June 25, 2015, Complainant’s March 19, 2015, request for reasonable accommodation was denied. 3. On July 22, 2015, Complainant was detailed to the position of Program Support Assistant pending outcome of a fact-finding inquiry. 4. Between July 20, 2015 and October 2015, while Complainant was detailed to Education and Staff Development, Complainant was required to: a) send that department’s staff members an email message when Complainant left Complainant’s office; b) write Complainant’s location on a “white board” when leaving Complainant’s office; c) personally inform staff members when leaving her office; d) be escorted by a staff member when Complainant leaves the building, and was not provided with proper training. 2022000198 4 5. On numerous dates between July 20, 2015 and October 2015, staff members informed Complainant that it was time to get ready to leave the office and reminded Complainant to “go home at 4:30pm.” Following an investigation on her complaint, Complainant requested a hearing before an AJ. Complainant notes that on October 10, 2017, she sought to consolidate the above mentioned three cases and they were consolidated before the same AJ. Thereafter, the parties participated in a settlement conference, via the EEOC Administrative Settlement Envoy (EASE), on July 31, 2018, which resulted in a settlement agreement. Complainant and the Agency entered into a settlement agreement, which was fully executed on August 8, 2018, to resolve these three complaints (Agency Nos. 200H-0542-2012103481, 200H- 0542-2015101302, 200H-0542-2015104693) and one additional complaint (200H-0542- 2018103832) which was not pending a hearing. The settlement agreement provided, in pertinent part, that: 2. Agency Obligations: (1) Complainant will be placed into an HR staffing position at the GS 11 grade in the Wilmington VAMC, beginning with a 60-day detail to be converted to full time, permanent thereafter, upon successful completion of said detail. PD [position description] attached as Exhibit A. (2) The Wilmington VAMC will provide training to Aggrieved Person/Complainant regarding said position. New employee orientation particular to Wilmington VAMC and other training as needed so that Complainant can fully perform the functions of the position. (3) Reinstatement of 100 hours of Sick Leave and 33 hours of Annual Leave within 60 days of the execution of the settlement agreement. 3. Enforcement: If the Aggrieved Person/Complainant believes that the Agency has breached this Agreement, he/she must notify the Deputy Assistant Secretary for Resolution Management (ORM) in writing, within 30 calendar days after the date of the alleged breach. If ORM determines a breach has occurred, the Aggrieved Person/Complainant may elect to have this Agreement implemented, or to have any waived or withdrawn complaint(s) or other actions reinstated and processed from the point in the process where processing ceased. Pursuant to 29 CFR §1614.504, the Aggrieved Person/Complainant may appeal to the Equal Employment Opportunity Commission (EEOC) if he or she believes that the 2022000198 5 Agency has either not fully implemented this Agreement or has improperly failed to reinstate his or her complaint. 5. Solely as to any claim of discrimination based on age, 40 years or older, the Parties agree that this Agreement complies with the requirements of the Age Discrimination in Employment Act and the Older Workers Benefit Protection Act. … This Agreement shall be effective upon the last required signature identified below or, in the case of a claim of age discrimination, upon expiration of the 7-day revocation period. On August 8, 2018, the AJ issued an Order of Dismissal Due to Voluntary Binding Settlement Agreement. The AJ stated four cases were administratively closed: Agency Nos. 200H-0542- 2012103481, 200H-0542-2015101302, 200H-0542-2015104693, and 200H-0542-2018103832. The Agency noted that on August 14, 2018, Complainant sent an email to the Deputy Chief of District Counsel’s Office, stating that she wished to revoke the settlement agreement, invoking the ADEA clause in the agreement. On September 10, 2018, Complainant filed a Motion to Reinstate Consolidated Case. Complainant noted that pursuant to the settlement agreement, she had seven days from the execution of the agreement to revoke the agreement. She noted that from July 31, 2018 and August 8, 2018, she was detailed to a different facility, as part of the settlement agreement’s terms. She stated that on August 14, 2018, she revoked the agreement as allowed for revocation of claims brought under the ADEA. Complainant requested her complaints be reinstated. The Agency filed a statement in objection to Complainant’s Motion noting that any valid revocation of Complainant’s age claims pursuant to the Older Workers Benefit Protection Act (OWBPA) applied only to the age claims and argued that the settlement agreement remained enforceable as to the claims raised on other bases. Thereafter, on September 20, 2018, Complainant initiated EEO Counselor contact on a new matter. On January 7, 2019, Complainant filed a complaint, which was subsequently amended (Agency No. 200H-0542-2018106398). The Agency accepted Complainant’s claims that she was subjected to a hostile work environment on the bases of age (over 50), race (Black), color (black), national origin (African American), disability, sex (female), and in reprisal for prior protected EEO activity when: 1. From August 3, 2018 to April 2019, she was: a. assigned more work than her coworker. b. she has experienced bullying by her coworkers. c. her coworker would not meet with her (since August 30, 2018). d. her immediate supervisor threatened her with AWOL (on February 7, 2019, for February 5, 2019). 2022000198 6 e. her immediate supervisor failed to communicate with her about possible AWOL charges for February 25, 2019. f. her immediate supervisor supervised her during the period of her detail even though she was assigned to another supervisor. g. she was subjected to disrespectful/rude treatment. h. she was made to feel like a criminal through instructions given to her on a March 12, 2019 letter of detail which advised her how to enter and leave the unit. 2. From August 3, 2018, and continuing, management failed to address Complainant’s request for accommodation for a quieter office space to use “Dragon Speak.” 3. From October 1 - October 21, 2018, Complainant was given more work assignments than her coworker. 4. In late August or early September 2018, she was not provided training and access to the shared drive for care planning for units 138A, 1388, and Hospice, which impeded her ability to complete patient assessments. 5. Since her detail of December 14, 2018 (to Mobile Veterans Program -MVP), her reasonable accommodations were not set in place, thereby denying her reasonable accommodation through a subsequent detail beginning February 19, 2019 (to Facilities and Engineering Service - FES) and ending March 11, 2019. 6. On February 25, 2019, Complainant was charged LWOP when she was on duty. 7. On March 12, 2019, Complainant was issued a written sick leave warning. 8. On March 13, 2019, AS issued Complainant a sick leave certificate. 9. On April 9, 2019, Complainant learned that she incurred a debt due to AS’ failure to code her leave requests in VATAS. The Agency conducted an investigation of Complainant’s complaint (Agency No. 200H-0542- 2018106398) from May 2019 to September 2019. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an EEOC AJ. Complainant requested a hearing and the matter was assigned to an AJ. Complainant stated that the new complaint was consolidated with her other three cases. On May 1, 2020, the AJ issued an Order Granting Complainant’s Motion to Reinstate ADEA claims (Agency Nos. 200H-0542-2012103481, 200H-0542-2015101302, and 200H-0542- 2015104693) and reinstated the ADEA claims only. The AJ also requested the parties submit a proposed pre-hearing scheduling order for the 2018 claims. On June 16, 2020, the AJ issued a Scheduling Order for Agency No. 200H-0542-2018106398. This Order noted the parties had 60 days, beginning June 17, 2020, to complete all formal discovery in the case. On July 8, 2020, Complainant moved to hold all four of her cases in abeyance due to illness. Complainant also noted the parties discussed and proposed a schedule to initiate discovery on November 23, 2020, and close discovery on January 29, 2021. 2022000198 7 On August 19, 2020, the AJ issued an Order of Dismissal without Prejudice with Right to Reopen upon Written Motion. The AJ noted Complainant’s motion to hold all of her pending cases in abeyance (Agency No. 200H-0542-2018106398 and ADEA Only cases: Agency Nos. 200H-0542-2015-101302, 200H-0542-2015-104693, and 200H-0542-2012-103481). The AJ granted Complainant’s request and dismissed the four cases without prejudice with right to reopen upon written motion. The AJ noted Complainant must reinstate her request for hearing within 120 days from the date of this Order. On December 11, 2020, Complainant submitted a Motion to Reopen/Reinstatement of Hearing Request. On February 9, 2021, the AJ granted her Motion to Reinstate her four complaints and hearing requests. On February 18, 2021, the AJ issued an Order Following Telephonic Conference Held Today. The Order noted that Agency Nos. 200H-0542-2015-101302, 200H-0542-2015-104693, and 200H-0542-2012-103481 were reinstated on the ADEA basis only and that the remining claims in those complaints were resolved through a settlement agreement. The Order also noted that Complainant would be provided an opportunity for limited discovery on the 2018 complaint (Agency No. 200H-0542-2018106398). On February 19, 2021, Complainant filed her Complainant’s Motion for Discovery, Motion to Reinstate, and Other Responses. In relevant part, Complainant objected to the reinstatement of only the ADEA claims in Agency Nos. 200H-0542-2015-101302, 200H-0542-2015-104693, and 200H-0542-2012-103481. Complainant noted she revoked the settlement as to her ADEA claims; however, she argued the Agency voided the entire agreement. Specifically, she stated she has not obtained a single benefit from the settlement of her Title VII claims. She stated the Agency had not provided her the promotion to a GS-11 and did not reinstate any of her leave. Thus, she argued that there was no consideration for the “settlement” to resolve her Title VII claims. On February 23, 2021, the AJ issued an Order Regarding Complainant’s Proposed Discovery for 2018 Case and Motion to Reinstate Those Cases Reinstated on ADEA Claims Only. In relevant part, the AJ ordered the Agency, by February 26, 2021, to respond to Complainant’s Motion to Reinstate, including stating to the extent it has or has not complied with its obligations under the settlement agreement. The AJ noted Complainant’s reply was due by March 31, 2021. Further, the AJ stated that she discovered that the 2018 case named in the agreement was inadvertently excluded from her May 1, 2020 Order Granting Complainant’s Motion to Reinstate ADEA Claims Only. The AJ noted she would revisit her May 1, 2020 Order. On March 8, 2021, the AJ issued an Order Granting Complainant’s Proposed Discovery with Modifications. The AJ granted Complainant’s request to propound written discovery to the Agency as modified in the AJ’s Order with regard to Agency No. 200H-0542-2018106398. 2022000198 8 The Agency provided two documents entitled Agency Certification purporting to address the Certification of Consideration given to Complainant by the Agency in the 2018 settlement agreement. Document 1 is a March 25, 2021 Certification signed by the Former Acting Human Resources Chief for Wilmington VAMC (HR Chief 1). HR Chief 1 stated that he was personally involved in the settlement because he gave approval for Complainant to be detailed from Coatesville VAMC as a Recreation Therapist to Wilmington VAMC as a Human Resource Specialist. HR Chief 1 stated that Complainant started in the position on August 5, 2018, and had a Human Resources Specialist assigned to train her in the position. HR Chief 1 stated that Complainant’s employment at the Wilmington VAMC lasted from August 5, 2018 to August 15, 2018. HR Chief 1 provided an August 2, 2018 letter from the Human Resources Officer/Chief for Coatesville (HR Chief 2) to Complainant regarding Complainant’s detail to the Wilmington VAMC. The letter notified Complainant that her detail to the position of Human Resources Specialist, Staffing at the Wilmington VAMC would be effective August 5, 2018, for a duration of 60 days. Complainant was advised to report to Person A, in Human Resources on August 6, 2018. Document 2 is a March 30, 2021 Certification signed by an individual who at the time was the Human Resources Chief for Coatesville VAMC (HR Chief 2). HR Chief 2 was personally involved in the settlement of the matter because she gave approval along with HR Chief 1, Acting Chief of Human Resources for Wilmington VAMC, for Complainant to transfer from Coatesville VAMC as a Recreation Therapist to Wilmington VAMC as a Human Resource Specialist. HR Chief 2 stated that Complainant started the position on Tuesday, August 7, 2018. HR Chief 2 stated that Complainant’s employment at the Wilmington VAMC lasted until August 15, 2018. HR Chief 2 noted the restoration of leave was to be processed within 60 days of signing the settlement agreement. HR Chief 2 stated the leave was not restored because Complainant ended her transfer to the Wilmington VAMC and thus revoked the agreement. On August 12, 2021, Complainant filed her Complainant’s Request for a Decision on Status of Case. Complainant noted that on May 18, 2021, the AJ indicated at a telephonic conference that she was considering a question of her jurisdiction over the subject matter due to Complainant’s request to reinstate all claims pursuant to the Agency allegedly voiding a prior settlement agreement. Complainant requested a status update on her cases. Further, she noted that only three of the consolidated cases were subject to the settlement agreement. She stated any decision dismissing Agency No. 200H-0542-2018106398 as part of the settlement agreement would be improper. On August 26, 2021, the AJ issued an Order of Dismissal without Prejudice of ADEA Claims to Avoid Fragmentation of Complaints and Order Remanding All Complaints to the Agency for Further Processing. The AJ noted in the interest of judicial efficiency and to avoid fragmenting Complainant’s complaints, due to Complainant’s request to reinstate the entirety of all complaints and recognize the 2018 settlement agreement as voided, the pending ADEA-ONLY complaints were DISMISSED without prejudice and with a right to reinstate within 20 days after final decision from the Agency and/or the EEOC’s Office of Federal Operations (OFO) has been exhausted related to the parties’ dispute over the viability of the settlement agreement. 2022000198 9 The AJ also clarified that the 2018 settlement agreement included all claims on Agency No. 200H-0542-2018106398. Thus, the AJ found the failure to dismiss that case along with the others was in error. Further, the AJ noted the failure to limit Agency No. 200H-0542- 2018106398 to the ADEA basis only when granting Complainant’s request to reinstate the complaints under the OWBPA, was also in error. Thus, the AJ ORDERED that Agency No. 200H-0542-2018106398 be consolidated with the other related complaints in the parties’ dispute regarding the viability of the 2018 settlement agreement. Finally, the AJ denied Complainant’s Motion to reinstate all complaints on all bases. The AJ REMANDED all complaints to the Agency for further processing in accordance with the 2018 settlement agreement. Specifically, the AJ noted all four of the complaints were remanded to the Agency for a decision regarding the viability of the settlement agreement in accordance with Section 3 of the settlement agreement. The AJ noted Complainant will have the right to appeal the Agency’s decision to EEOC’s Office of Federal Operations (OFO) in accordance with Section 3. The AJ noted, the Agency “shall waive any objection on timeliness of the notification requirements” under Section 3. Further, the AJ noted that, “The Complainant’s notification shall be deemed submitted. The Agency shall expedite this matter and enter a decision within thirty (30) days of this Order.” When the Agency failed to issue a decision within 30 days of the AJ’s Order, Complainant appealed directly to the Commission. Complainant argues that the AJ erred in dismissing Agency No. 200H-0542-2018106398 as part of the 2018 settlement agreement. Complainant also argues the AJ erred in failing to reinstate the entirety of the claims in Agency Nos. 200H- 0542-2015-101302, 200H-0542-2015-104693, and 200H-0542-2012-103481. Complainant notes she revoked the settlement agreement as to her ADEA claims; however, she contends that the Agency’s conduct made the settlement agreement lack consideration. She argues that she did not receive a single benefit from the settlement of her Title VII claims. ANALYSIS AND FINDINGS 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). 2022000198 10 As an initial matter, we find the instant matter is properly before the Commission. We note the AJ remanded the matter to the Agency, explicitly stating that Complainant’s notification pursuant to Section 3 of the settlement agreement would be deemed submitted and noting that the Agency shall waive any objection on timeliness of the notification requirement. The Agency was ordered to issue a decision regarding the viability of the settlement agreement within 30 days of the AJ’s Order. The Agency failed to issue a final decision as directed by the AJ and we find Complainant’s appeal to OFO was proper. Breach of the Settlement Agreement In the present settlement agreement, Complainant settled claims under Title VII, the Rehabilitation Act, and the ADEA. The AJ found Complainant timely revoked the waiver of her ADEA claims and reinstated her age claims for further processing. The Commission has recognized that failure to comply with the OWBPA’s stringent waiver safeguards will void the settlement agreement only with regard to the ADEA claims. McMahon v. Department of Homeland Security, EEOC Appeal No. 0120112007 (April 11, 2012), request for recon. denied, EEOC Request No. 0520100222 (November 1, 2012) (citations omitted). Any settlement agreement knowingly and voluntarily agreed to by the parties, reached at any stage of the complaint process, is binding on both parties. See 29 C.F.R. § 1614.504(a). When determining whether a settlement agreement was knowingly and voluntarily entered, the Commission looks at the totality of the circumstances surrounding the agreement, including the complainant’s education and experience, the amount of time complainant considered the agreement before signing it, the clarity of the agreement, complainant’s opportunity to consult with an attorney, the agency's encouragement or discouragement of Complainant’s consultation with an attorney, and consideration given in exchange for a waiver of liability. See Brown v. Department of Agriculture, EEOC Request No. 05960769 (July 16, 1999) (citations omitted). Despite Complainant’s contention to the contrary, we find consideration was given in exchange for her waiver of liability. We find that the agreement is valid. Complainant argues that the Agency breached the settlement agreement because she did not receive a single benefit from the settlement under the agreement. Specifically, she states the Agency had not provided her the promotion to a GS-11 and did not reinstate any of her leave. According to the settlement agreement, Complainant was to place Complainant into an HR staffing position at the GS-11 grade in the Wilmington VAMC, beginning with a 60-day detail to be converted to full time, which was to become permanent upon her successful completion of the detail. Exhibit A of the settlement agreement contained a position description for the position of Human Resources Specialist, GS-0201-11, at the Wilmington VAMC. The record reveals the Agency detailed Complainant to the position of Human Resources Specialist, Staffing at the Wilmington VAMC. The letter detailing Complainant to the position stated the duration of the detail was for 60 days and listed an effective date of August 5, 2018. 2022000198 11 The letter noted Complainant should report to Person A, in Human Resources, on August 6, 2018. HR Chief 2 noted Complainant began working as a Human Resources Specialist at the Wilmington VAMC on August 7, 2018. In her September 10, 2018 Motion to Reinstate Consolidated Case, Complainant acknowledged that she was detailed to a different facility, as part of the settlement agreement’s terms. While Complainant contends the Agency failed to promote her to a GS-11, we note the Agency was only required to promote Complainant to a permanent GS-11 Human Resources Specialist, Staffing at the Wilmington VAMC after she successfully completed her detail. As Complainant voluntarily chose to end her transfer to the Wilmington VAMC and did not complete her 60-day detail, we find that the Agency was not required to promote her to a permanent GS-11 Human Resources Specialist at the Wilmington VAMC. Thus, we find the Agency complied with this provision of the agreement. Under the agreement, the Wilmington VAMC was to provide training to Complainant for the position, including new employee orientation training and other training as needed so Complainant could fully perform in that position. HR Chief 1 noted that Complainant was assigned a Human Resources Specialist to train her. We find as Complainant ended the detail at the Wilmington VAMC within a week of starting, the Agency was excused from providing further training. According to the agreement, the Agency was also to reinstate 100 hours of sick leave and 33 hours of annual leave within 60 days of the execution of the settlement agreement. In its March 30, 2021 submission, the Agency acknowledged that it did not restore the leave as specified in the settlement agreement. HR Chief 1 stated the requisite leave was not restored because Complainant ended her transfer to the Wilmington VAMC. However, the agreement did not specify that the restoration of leave was conditioned on Complainant completing her detail to the Wilmington VAMC. Thus, we find the Agency is in breach of this provision of the settlement agreement. As remedy for the breach, Complainant requested her complaints be reinstated. Since any benefits Complainant received under the settlement agreement were de minimis - only a one- week detail, we find that reinstatement of Complainant’s complaints is the appropriate remedy for the Agency’s breach. Complainant’s complaints under Title VII and the Rehabilitation Act shall be reinstated for further processing under Agency Nos. 200H-0542-2012103481; 200H- 0542-2015101302; and 200H-0542-2015104693, from the point processing ceased which was at the hearing level before an AJ. ADEA Claims under Agency Nos. 200H-0542-2012103481; 200H-0542-2015101302; and 200H-0542-2015104693 The AJ found Complainant timely revoked her waiver of her age claims pursuant to the OWBPA claims in Agency Nos. 200H-0542-2012103481, 200H-0542-2015101302, and 200H-0542- 2015104693. The AJ granted Complainant’s Motion to Reinstate ADEA claims (Agency Nos. 200H-0542-2012103481, 200H-0542-2015101302, and 200H-0542-2015104693) and reinstated the ADEA claims in those three complaints. 2022000198 12 When Complainant later challenged the validity of the entire 2018 settlement, the AJ dismissed the pending ADEA-only claims without prejudice and with a right to reinstate within 20 days after final decision from the Agency and/or the EEOC’s Office of Federal Operations (OFO) has been exhausted related to the parties’ dispute over the viability of the settlement agreement. As we have now decided the issue of the validity of the settlement agreement for the non-ADEA claims, we Order the Agency to continue processing the ADEA-only claims under Agency Nos. 200H-0542-2012103481; 200H-0542-2015101302; and 200H-0542-2015104693. Claims under Agency No. 200H-0542-2018106398 The AJ found that the 2018 settlement agreement included all claims on Agency No. 200H- 0542-2018106398. Thus, the AJ Ordered that Agency No. 200H-0542-201806398 be consolidated with the other related complaints in the parties’ dispute regarding the viability of the 2018 settlement agreement. On appeal, Complainant argues that the AJ erred in dismissing Agency No. 200H-0542- 2018106398 as part of the 2018 settlement agreement. The Agency does not contest Complainant’s argument on appeal that Agency No. 200H-0542-2018106398 was not part of the 2018 settlement agreement. Upon review, we find the AJ erred in finding Agency No. 200H- 0542-2018106398 was included in the 2018 settlement agreement. Specifically, we note that the settlement agreement lists the following case numbers: Agency Nos. 200H-0542-2012103481, 200H-0542-2015101302, 200H-0542-2015104693, and 200H-0542-2018103832. The agreement did not list Agency No. 200H-0542-2018106398. Further, the settlement agreement was fully executed on August 8, 2018, and withdrew any and all pending informal and formal EEO complaints in any stage of the processing in their entirety. Thus, the settlement agreement waived complaints existing at the time the agreement was signed, even if not listed. However, Complainant did not initiate EEO contact for Agency No. 200H-0542-2018106398 until September 20, 2018. Thus, the 2018 Settlement Agreement did not and could not have included Agency No. 200H-0542-2018106398. Thus, we order the Agency to continue processing all claims (ADEA and non-ADEA) under Agency No. 200H-0542-2018106398. CONCLUSION We find breach regarding the settlement agreement resolving Complainant’s non-age claims under Agency Nos. 200H-0542-2012103481, 200H-0542-2015101302, 200H-0542-2015104693 and the underlying complaints are REMANDED so the Agency shall resume processing from the point processing ceased (at the hearing stage) for the non-age claims. We find that all claims under Agency No. 200H-0542-201806398 were not settled and the complaint is REMANDED so the Agency shall resume processing of the complaint from the point processing ceased (at the hearing stage). 2022000198 13 We find that Complainant’s revocation of the settlement of her ADEA claims under Agency Nos. 200H-0542-2012103481, 200H-0542-2015101302, and 200H-0542-2015104693 was proper and the Agency shall resume processing these claims from the point processing ceased (at the hearing stage). ORDER Within 30 days of the date this decision is issued, the Agency shall notify the Hearings Unit of the EEOC’s Philadelphia District Office to request the assignment of an Administrative Judge to preside over Complainant’s age based and non-age-based claims under Agency Nos. 200H-0542- 2012103481, 200H-0542-2015101302, and 200H-0542-2015104693. Within 30 days of the date this decision is issued, the Agency shall notify the Hearings Unit of the EEOC’s Philadelphia District Office to request the assignment of an Administrative Judge to preside over Complainant’s age based and non-age-based claims under Agency No. 200H-0542- 201806398. Simultaneously, a copy of both requests for hearings requests letters shall be sent to Complainant. IMPLEMENTATION OF THE COMMISSION’S DECISION (K0719) 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. Failure by an agency to either file a compliance report or implement any of the orders set forth in this decision, without good cause shown, may result in the referral of this matter to the Office of Special Counsel pursuant to 29 C.F.R. § 1614.503(f) for enforcement by that agency. 2022000198 14 STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within 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). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx. Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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). 2022000198 15 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 you wish to file a civil action, you have the right to file such 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 March 16, 2023 Date