0120140354
10-02-2015
Trey H.,1 Complainant, v. Robert McDonald, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Trey H.,1
Complainant,
v.
Robert McDonald,
Secretary,
Department of Veterans Affairs
(Veterans Health Administration),
Agency.
Appeal No. 0120140354
Agency No. 200L-0629-2006100133
DECISION
Complainant filed a timely appeal with this Commission from a final decision (FAD) by the Agency dated October 1, 2013, finding that it was in compliance with the terms of the settlement agreement into which the parties entered. See 29 C.F.R. � 1614.402; 29 C.F.R. � 1614.504(b); and 29 C.F.R. � 1614.405.
BACKGROUND
At the time of events giving rise to this appeal, Complainant was a former employee at the Agency's Veterans Affairs Medical Center (VAMC) facility in New Orleans, Louisiana. Complainant resigned his position, effective May 30, 2005. During his employment with the Agency, Complainant filed five prior EEO complaints.2
On November 9, 2005, Complainant and the Agency entered into a settlement agreement to resolve the five complaints. The complaints, which had been filed between February 14, 2003 and November 13, 2004, were referenced in the settlement agreement. The settlement agreement provided, in pertinent part, that:
(1.3) Workers' Compensation: Complainant shall retain any rights he may otherwise have to file a claim for workers' compensation. He must meet the requirements established by the U.S. Department of Labor for filing such a claim, and the Agency makes no representations herein regarding eligibility;
(1.4) No Future Employment with VA: Complainant agrees that he will not apply for any future positions at any facility within the U.S. Department of Veterans Affairs;
(2.1) Transfer: [The Agency shall] Pay to complainant the sum of two hundred forty thousand ($240,000.00) dollars, inclusive of all costs and attorney fees;
(2.4) Purging OPF: All negative material in complainant's OPF will be removed consistent with the reference provided in part 2. 2. above [which pertained to inquiries for references from any future potential employer];
(3.3) Cooperation: The parties shall fully cooperate with each other and in good faith shall do all things reasonable and necessary to accomplish the purposes of this Agreement; and
(3.7) Effective Date: This Agreement shall become effective immediately upon the date that the last signature is affixed below. The parties shall thereafter be bound by the terms contained herein.
The last signature was affixed on November 9, 2005.
On September 20, 2005, after he had signed the settlement agreement,3 Complainant went to the Houston VA Medical Center Human Resources (HR) seeking assistance, in the aftermath of Hurricane Katrina. The HR-NOLA office at the VA Medical Center in Houston, Texas was in operation to help with employment placement. Complainant acknowledged that he wanted: 1) his "worker's comp claim number," 2) to see a Health Care Provider for treatment of an 'on-the-job' injury; and 3) "to get information on [his] federal employment retirement system paper work," particularly his Federal Employee Retirement (FERS) contributions, according to Complainant's Affidavit. He was told to speak with representatives from the New Orleans Office. Complainant spoke with management officials at the site, who were aware of Complainant's prior EEO activity. He was told that, since his federal employment had terminated, he was not eligible to receive assistance. Specifically, Complainant was told he was not eligible for placement services, which was the only activity in operation at the time in question under the HR-NOLA command. While leaving, another veteran directed Complainant to a "Triage Unit" that was set up to aid New Orleans evacuees. He went to that area and received a hepatitis shot and a pain shot for his back.
The record shows that the allegations regarding the September 20, 2005 incident were the subject of a separate EEO complaint, which was referenced as 200L-0629-2006100133. The record indicates that the Agency issued a decision regarding 200L-0629-2006100133 on August 9, 2006.
By letter to the Agency dated August 1, 2013, Complainant advised the Agency that he believed that the Agency was in breach of the settlement agreement, and requested that the Agency reinstate his complaints. Specifically, Complainant alleged that the Agency failed to provide him the assistance to which he was entitled, due to retaliation. Consequently, Complainant alleged that the Agency failed to abide by paragraph 1.3 (workers' compensation); paragraph 2.4 (purging of the OPF) and paragraph 3.3 (cooperation).
On August 12, 2013, the Agency acknowledged receipt of Complainant's breach claim, filed on August 1, 2013. In its October 1, 2013 FAD, the Agency found that it was in compliance with the terms of the Agreement.
This appeal followed.
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).
On appeal, Complainant has submitted numerous statements stating that he was "Blacklisted" and fired while out on workers' compensation, denied attorney's fees and that he was wrongfully advised to withdraw his court tort claim because he was advised that he had two OFO appeals pending, which he referenced as 01A52529 and 01A54044.
In the instant case, we find that the Agreement was valid and binding on both parties. We also note that this Agreement was the subject of a prior Agency decision, issued by the Agency on July 26, 2006. We incorporate by reference that compliance decision, because it contains a full description of the steps that were taken to implement the section of the Agreement pertaining to Complainant's workers' compensation claim.
With regard to the new breach claim, we note that the alleged breach pertained only to an incident that occurred on September 20, 2005, which was before the final agreement was executed on November 9, 2005. Therefore, the Agency could not have breached that Agreement by its actions on September 20, 2005, because the Agreement was not yet executed. Moreover, the Agreement did not include within its scope the complaint number, 200L-0629-2006100133.
The complaint number referenced in Complainant's breach claim, submitted August 1, 2013, pertained to Agency complaint 200L-0629-2006100133.
In addition, the September 20, 2005 incident that forms the basis of the breach claim was processed as a separate complaint based on an alleged action subsequent to Complainant's signing of the Agreement. The Agency found no discrimination, reasoning that Complainant had not been subjected to an adverse action and that he had not rebutted its stated reason for not providing him the assistance he sought. The decision advised Complainant that he had 30 days in which to appeal the decision. To date, there is no evidence to show that Complainant did not receive the decision or that he filed a timely appeal from the Agency's decision. However, we need not address the Agency's decision, because the matter before us is Complainant's breach claim.4
Nevertheless, we also find that the record does not show that the Agency failed to purge his OPF record. Complainant has not identified any records which should have been purged, but were not purged.
In addition, we find that there was no breach of the provision regarding cooperation. That paragraph pertains to cooperation with regard to carrying out the Agreement as it related to the complaints identified in the Agreement.
The record does not show that Complainant was "fired," because Complainant resigned his position and his resignation was noted in the Agreement which Complainant signed. He also voluntarily agreed not to seek future employment with the Agency. Therefore, there is no evidence that the Agency breached the Agreement when it did not offer him placement services on September 20, 2005.
In this case, we find that Complainant has not met his burden of showing that the Agency breached the November 9, 2005 settlement agreement and there is no evidence of any other subsequent settlement agreement. For all of these reasons, we find that there was no breach.
CONCLUSION
Accordingly, we AFFIRM the Agency's Decision, for the reasons stated herein.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0815)
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 tends 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), at Chap. 9 � VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. 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 (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 Complainants 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
October 2, 2015
__________________
Date
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.
2 Those complaint numbers were: 200L-0629-2003101173; 200L-0629-2004100828; 200L-0529-2004101651; 200L-0629-2004104390; and 200L-0629-2004104398.
3 Although the agreement was not finalized until November 9, 2005, Complainant had signed the agreement on August 25, 2005. The final execution had been delayed because of the Hurricane Katrina.
4 This is the only open appeal pending for Complainant with OFO. The two other appeals that Complainant noted as open appeals were both filed before the execution of the Agreement at issue and both were closed on November 17, 2005.
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