0120123492
05-24-2013
Xenita A. Whitaker, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Xenita A. Whitaker,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120123492
Agency No. 2003-0735-2012102369
DECISION
Complainant filed a timely appeal with this Commission from a final decision (FAD) by the Agency dated October 23, 2012, 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 complaint, Complainant worked as an Insurance Verification Manager at the Agency's Central Plains facility in Leavenworth, Kansas.
On July 5, 2012, Complainant filed a formal EEO complaint alleging she had been subjected to ongoing harassment/hostile work environment on the bases of her race (African American), sex (female) and/or retaliation for prior EEO activity. By letter dated August 2, 2012, the Agency issued its Notice of Partial Acceptance of the EEO complaint, accepting the harassment/hostile work environment claim, but dismissing several allegations concerning mediation.
On August 10, 2012, Complainant's attorney (Attorney) sought to amend the complaint. Among other things, the Attorney indicated that Complainant and the Agency had entered into a settlement agreement following mediation on June 22, 2012, and the Agency was now refusing to comply with the terms of the agreement. In addition, the Attorney stated that Complainant would like to amend her complaint to include new claims of reprisal.
The record established that when Complainant was in EEO counseling concerning her hostile work environment claims and prior to filing her formal complaint, she agreed to participate in the Agency-sponsored mediation program. As a result, following a mediation session, an agreement was signed on June 22, 2012, by both Complainant and an Agency Official. The settlement agreement provided, in pertinent part, that:
(1) [Complainant]
(a) Voluntarily withdraws all pending formal and informal EEO complaint, including but not limited to Agency No. 2003-0735-2012102369, based on reprisal, sex and race.
(2) The Agency shall:
(a) Approve EAP appointments for the aggrieved, 3 hours; once weekly for one year; unauthorized absences granted as requested;
(b) Step increase to GS-11, Step 8 with $10,000 compensation to be completed within 35 days of the signed agreement.
(c) Communication Meetings will be conducted between Complainant and the [Chief Operating Officer] once each month, first week for duration of three months. To begin, first week of month following signed agreement.
. . .
(3)
(d) The Aggrieved Party will attend communication training to be completed by 8/2012.
. . .
The agreement shall become effective the date of the last signature to the agreement.
The Agency responded to the Attorney's August 10, 2012 request to amend the complaint. The Agency stated in its letter dated August 15, 2012, that the Notice of Partial Acceptance should not have been issued since the parties settled the complaint by settlement agreement dated June 22, 2012, and the Agency essentially rescinded its previous acceptance of the complaint. The Agency indicated that if Complainant wanted to pursue her new claims of reprisal, they would have to be processed as a new complaint because her formal complaint (Agency No. 2003-0735-2012102369) had been closed due to the settlement agreement.
Subsequently, the Agency issued a determination, dated October 23, 2012, in response to Complainant's breach allegation. In that decision, the Agency determined that the settlement agreement is void. The Agency noted that the Agency Official who conducted the mediation did not have the authority to settle the matter. Further, the Agency indicated that Complainant was aware that the settlement agreement was a draft which still required final approval from Agency management. Since the "draft" was not approved by management, the Agency asserted that neither party was bound by the terms of the agreement. Accordingly, the Agency indicated that it would reinstate Complainant's EEO complaint (Agency No. 2003-0735-2012102369) with the amendments previously requested. Accordingly, the Agency argues that Complainant's appeal has been rendered moot.
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).
In this case, the Agency, in its October 23, 2012 FAD determined that there was no valid settlement agreement in this case, so no breach could have occurred. Rather, the Agency asserts that it has rescinded any prior dismissals of the underlying complaint and is processing the complaint with the requested amendments.
However, Complainant has made it clear that she is seeking specific performance of the settlement agreement and not reinstatement of her underlying complaint. Therefore, the issue to be resolved in this appeal is whether or not a valid settlement agreement existed and, if so, did the Agency breach its terms.
In its final decision, the Agency indicated that the conclusion that the agreement was not valid because the official who signed the agreement did not have the authority to settle the matter and that Complainant was aware of the "draft" nature of the agreement. The Agency asserts this conclusion was based on conversations with management officials and mediation officials. However the Agency failed to provide any evidence for the record to substantiate this claim. There are no affidavits from these individuals or any other supporting documentary evidence. In addition, the Agency asserted that Complainant had submitted emails to show her understanding of the "draft" nature of the settlement agreement. Again, the Agency failed to include copies of the emails to substantiate its claim. In Ericson v. Department of the Army, EEOC Request No. 05920623 (January 14, 1993), the Commission clearly stated that "the agency has the burden of providing evidence and/or proof to support its final decisions." See also Gens v. Department of Defense, EEOC Request No. 05910837 (January 31, 1992). Here, the Agency has failed to meet that burden. Therefore, in light of the fact that the record contains a copy of a settlement agreement between Complainant and the Agency, which indicates on its face that it became effective on the date signed (June 22, 2012), we conclude that there was a valid agreement between the parties and that the Agency, by its own admission, has failed to comply with any of its terms.
CONCLUSION
Accordingly, the Commission hereby REVERSES the October 23, 2012 FAD and REMANDS this matter for further processing consistent with this decision and applicable regulations. In light of Complainant's request for specific performance of the terms of the agreement, the Agency shall comply with the following Order.
ORDER
Within sixty (60) calendar days of the date this decision becomes final, the Agency shall fully comply with all the terms of the June 22, 2012 settlement agreement it has with Complainant.
The Agency is further directed to submit a report of compliance, as provided in the statement entitled "Implementation of the Commission's Decision." The report shall include supporting documentation verifying that the corrective action has been implemented.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610)
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 submitted to the Compliance Officer, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. 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.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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 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 (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 (Z0610)
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 from the Court that the Court appoint an attorney to represent you and that the Court also 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 with the Court 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
May 24, 2013
__________________
Date
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0120123492
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120123492