0120121379
06-22-2012
Patricia A. Niemann, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Patricia A. Niemann,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120121379
Agency No. 200J04382010101071
DECISION
Complainant filed an appeal with this Commission concerning the Agency's compliance with a written agreement, dated March 23, 2010, settling a previously filed EEO complaint.
BACKGROUND
At the time of the events at issue, Complainant was employed by the Agency as a licensed practical nurse (LPN) in Sioux Falls, South Dakota.
On March 23, 2010, Complainant and the Agency entered into a settlement agreement, resolving an EEO complaint (Agency No. 200J-0438-2010-101007). As part of the settlement, the Agency agreed, in pertinent part, that:
1. Performance standards for LPNs will be written in measurable terms.
2. They will be written to the fully successful and exceptional level.
3. These will be presented to the affected staff within 60 days of signing the agreement.1
In her February 1, 2012 appeal to the Commission, Complainant states that the agreement of March 23, 2010, was breached because the Agency did not write measurable performance standards for LPNs. Complainant included a copy of a letter, dated March 24, 2011, and addressed to the Agency's EEO officer in Hines, Illinois, in which she raises her breach allegations.
In response to Complainant's breach allegations, the Agency stated that Complainant did not inform the proper person (Deputy Assistant Secretary for Resolution Management) of her breach allegations, and as such it had no record of receiving Complainant's breach allegations. The Agency noted that her breach allegations are untimely raised and included a copy of a settlement agreement entered into by Complainant before the Merit Systems Protection Board (MSPB) on February 14, 2012, wherein she agreed that it covered all actions occurring prior to the date of the agreement, including EEO actions.
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).
With respect to the issue of the timeliness of Complainant's breach claims, we first note that the settlement agreement at provision 4(d) specifically directs Complainant to raise any claims of breach with the Deputy Assistant Secretary for Resolution Management (in Washington, D.C.) in writing within 30 days of the alleged violation. The Agency asserts that it has no record of Complainant filing her breach allegation in accordance with the agreement. Complainant provides a letter, dated March 24, 2011, alleging breach which she represents she sent to an Agency EEO Officer in Illinois. The agreement required the Agency to rewrite the performance standards within 60 days of signing the agreement in March 2010. Thus, even if Complainant's letter of March 24, 2011, is considered, her allegation of breach is untimely as she waited almost a year after the Agency was required to act.
Further, the record establishes that Complainant entered into another settlement agreement with the Agency before the MSPB on February 14, 2012, which resolved another EEO complaint (Agency No. 200J-0438-2010-103795), as well as her MSPB appeal (Case No. DE-752-11-0475-I-1). In addition, this agreement provided that Complainant agreed to waive her right to go forward with "any causes of action arising before execution of this agreement including but not limited to all EEO complaints, grievances, unfair labor practices, and civil actions." Thus, it appears, by virtue of the February 2012 MSPB settlement, that Complainant has waived her right to pursue the instant breach claim which arose prior to the MSPB settlement. To the extent that Complainant alleges she signed the February 2012 settlement agreement "under duress," she must raise such claims with the MSPB, not this Commission.
For the reasons stated above, Complainant's appeal is DISMISSED.
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), at 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 (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 (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
June 22, 2012
__________________
Date
1 The agreement also provided for the rescission of written counseling, guidelines for uniform allowances, and payment of $1,613. There is no allegation by Complainant that the Agency failed to comply with these other terms.
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0120121379
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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