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

Equal Employment Opportunity Commission

Aug 2, 2022

Appeal No. 2022002802 (E.E.O.C. Aug. 2, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Judi S.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2022002802 Agency No. 200P-0664-2015105367 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from a final decision by the Agency dated March 22, 2022, finding that it was in compliance with the terms of a December 11, 2017 settlement agreement. See 29 C.F.R. § 1614.402; 29 C.F.R. § 1614.504(b); and 29 C.F.R. § 1614.405. BACKGROUND During the period at issue, Complainant worked as a Nurse Case Manager/Care Coordinator at the Agency’s facility in San Diego, California. Believing that the Agency subjected her to unlawful discrimination, Complainant contacted an Agency EEO Counselor to initiate the EEO complaint process. On December 11, 2017, Complainant and the Agency entered into a settlement agreement to resolve the matter. The December 11, 2017 settlement agreement provided, in pertinent part, that: (2)(a) The Agency agrees to submit all necessary forms to pay Complainant for her attorney’s fees the lump sum of…$5,000.00, payable to [a named law firm] trust account via electronic deposit as an Automated Clearing 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. 2022002802 2 House (ACH) after the Parties’ execution of this Agreement and [the named law firm’s] submission of a correctly completed “VA Form 1009I, FSC Vendor File Request Form” which has been provided to [the named law firm]. (2)(b) The Agency agrees to continue adhere to the terms of the Reasonable Accommodation (“RA”) that Complainant has currently approved, for as long as necessary, subject to the submission required medical documentation from Claimant’s physician. Any violation or modification of the current RA by the Agency shall constitute a material breach of this agreement unless Claimant and/or her doctor provide documentation seeking modification. In an Agency Accommodation Request Determination Form dated January 11, 2017, in effect at the time of the execution of the settlement agreement, the Agency indicated that it would provide Complainant the following accommodations (Block 9): (1) Continue with Telework as established. (2) Staff will be expected to attend necessary face to face meetings as scheduled unless a Vanceline is offered to staff for the meeting. (3) [A named supervisor, S1]…will continue as your direct supervisor until organizational restructuring of nursing service. Management retains the authority to assign staff to a different supervisor, which is not under the purview of RAC. By letter to the Agency dated January 10, 2022, Complainant alleged breach. Specifically, Complainant alleged that the Agency was in breach of provision 2(b) when she received an email on December 29, 2021, informing her that she would be under the supervision of another supervisor (S2) as of December 27, 2021. Complainant asserted that “while the reassignment of supervisor was due to S1’s retirement, there was no organizational restructuring of the actual nursing service.” Complainant further stated even assuming that S1’s retirement is considered an organizational restructuring, placing her under the direct supervision of S2 is still a breach given that it is reprisal for Complainant entering into the settlement agreement and raising her underlying claims. Complainant stated that the Agency knowingly placed her under the supervision of S2 whom it knew she had a tumultuous work relationship. In its March 22, 2022 FAD, the Agency found no breach. The Agency found that provision 2(b) of the settlement agreement provided was void for lack of consideration. The Agency found that this provision did not provide Complainant with anything that she was not already receiving via her approved reasonable accommodation. The Agency in its final determination stated that other consideration was provided in provision 2(a) of the settlement agreement. 2022002802 3 Thus, the Agency determined that the settlement agreement was reformed without provision 2(b). The instant appeal followed. On appeal, Complainant reiterates that the Agency breached provision 2(b) by assigning her to the supervision of S2. Complainant asserts that Agency counsel drafted the settlement agreement. In response, the Agency requests that we affirm its final determination finding no breach of the settlement agreement. ANALYSIS 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). Provision 2(b) is void for lack of consideration because it does not provide Complainant with anything that she was not already entitled to receive as a matter of law. See Walters v. U.S. Postal Serv., EEOC Appeal No. 01A45165 (Nov. 24, 2004). Generally, the adequacy or fairness of the consideration in a settlement agreement is not at issue, as long as some detriment is incurred as part of the bargain. When one of the contracting parties incurs no legal detriment, the provisions of the agreement will be set aside for lack of consideration. See MacNair v. U.S. Postal Serv., EEOC Appeal No. 01964653 (July 1, 1997); Juhola v. Dep’t of the Army, EEOC Appeal No. 01934032 (June 301994) (citing Terracina v. Dep’t of Health and Human Serv., EEOC Request No. 05910888 (March 11, 1992)) However, given that other consideration was exchanged through other provisions of the settlement agreement (such as provision 2(a)), we do not find that the entire settlement agreement is invalid, but rather reformed without provision 2(b). Finally, to the extent Complainant is alleging that the Agency is subjecting her to retaliation or is failing to provide her with a reasonable accommodation after the execution of the settlement agreement, Commission regulations provide that allegations that subsequent acts of 2022002802 4 discrimination violate a settlement agreement shall be processed as separate complaints. See 29 C.F.R. § 1614.504(c). Thus, if Complainant wishes to pursue these matters through the EEO process, she should contact an EEO Counselor. Accordingly, we AFFIRM the Agency’s final determination finding no breach of the settlement agreement. 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, 2022002802 5 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). COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (S0610) 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 (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 August 02, 2022 Date