0120073710
12-14-2007
Sandra K. Goodman, Complainant, v. R. James Nicholson, Secretary, Department of Veterans Affairs, Agency.
Sandra K. Goodman,
Complainant,
v.
R. James Nicholson,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120073710
Agency No. 2000-0640-2002101065
DECISION
Complainant filed a timely appeal with this Commission from a letter of determination by the agency dated July 18, 2007, finding that it was in compliance with the terms of a January 23, 2003 settlement agreement. See 29 C.F.R. � 1614.402; 29 C.F.R. � 1614.504(b); and 29 C.F.R. � 1614.405.
The January 23, 2003 settlement agreement provided, in pertinent part, that the agency agrees to:
2(d) Rescind the admonishment of April 26, 2001 and the suspension of December 13, 2001, upon the issuance of the written reprimand and restore any lost wages incurred by the suspension.1
By letter to the agency dated April 3, 2007, complainant claimed breach of provision 2(d). Complainant claimed that the agency did not remove reference to the December 13, 2001 suspension from her Official Personnel Folder (OPF). Specifically, complainant claimed that on February 25, 2007, she received a proposed fourteen-day suspension letter which contained language about a previous disciplinary action that she received on December 13, 2001. Complainant further claimed that on March 12, 2007, she reviewed her OPF and found that it contained documents directly related to her December 13, 2001 suspension.
In its July 18, 2007 letter of determination, the agency found no breach. The agency acknowledged that a Standard Form 50 (SF 50) relating to complainant's suspension during the period of January 16, 2002 through January 18, 2002 and an SF 50 for complainant's return to duty, were inadvertently left in her OPF. The agency stated, however, that the identified documentation was immediately removed from complainant's OPF. The agency stated that based upon the removal of that documentation, complainant's proposed fourteen-day suspension dated February 25, 2007 was mitigated to a three-calendar day suspension. The agency further found that it had complied with the portion of provision 2(d) concerning the restoration of complainant's lost wages. The agency stated that the admonishment and suspension documentation remained in complainant's OPF for a considerable amount of time; however, once brought to the attention of management, the oversight was immediately corrected. The agency stated that complainant made no reference to any harm she incurred over the preceding four years because of the oversight, other than the instant breach claim. The agency asserted that to the extent that there was any breach of the instant settlement agreement because of its delay in taking the action provided for in portion of provision 2(d), such breach has been cured.
However, the agency states that if the Commission determines that it breached that portion of provision 2(d) relating to rescission of disciplinary action, complainant would should return the benefits conferred pursuant to the instant settlement agreement in order to have her underlying complaint reinstated from the point processing ceased.
Regarding complainant's proposed fourteen-day suspension letter dated February 25, 2007, the agency determined that it was not part of the instant settlement agreement; and advised complainant that this matter was more appropriately viewed as a separate complaint, and provided her with information for contacting an EEO Counselor.
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. Department of Defense, 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. Department 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. United States Postal Service, 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).
Upon review of the evidence in the record, the Commission determines that the agency breached provision 2(d) of the settlement agreement. Provision 2(d) identifies an express agency obligation to "rescind the admonishment of April 26, 2001 and the suspension of December 13, 2001, upon the issuance of the written reprimand and restore any lost wages incurred by the suspension." In regard to complainant's breach claim, this settlement provision reflects the intentions of the parties to obligate the agency to remove any reference of the December 13, 2001 from her OPF. However, the record reflects that complainant received a proposed fourteen-day suspension dated February 25, 2007, that contained language addressing the disciplinary action identified in the settlement agreement. We therefore determine that the agency's actions constitute breach of provision 2(d) of the settlement agreement.
Accordingly, we REMAND complainant's breach claim for further processing. In so doing, however, we note that complainant was the recipient of other benefits identified in the agreement which must be returned if complainant wishes to reinstate her complaint for further processing. The Commission notes, for example, that the agreement contains a provision that complainant would be placed into the position of Statistical Assistant, GS-1531-07; and that the agency would approve the use of pay retention as delineated until Title 5, Code of Federal Regulations 536. We therefore give complainant the option, in accordance with the ORDER below, of either returning the benefits conferred pursuant to the agreement and reinstating the underlying complaint, or allowing the terms of the agreement to stand.
Finally, we find that the agency properly found that complainant's claim that she received a proposed fourteen-day suspension letter dated February 25, 20007 was not a breach claim, but rather concern subsequent action which must be processed as a separate complaint. See 29 C.F.R. � 1614.504(c). The agency properly advised complainant to contact an EEO Counselor should she chose to purse these matters in the EEO process.
ORDER
The agency is ordered to notify complainant of her option to either return to the status quo prior to the signing of the settlement agreement or to obtain specific performance of the agreement. The agency shall so notify complainant within thirty (30) calendar days of the date this decision becomes final. The agency shall also notify complainant that she has fifteen (15) calendar days from the date of her receipt of the agency's notice within which to notify the agency either that she wishes to return to the status quo prior to the signing of the agreement or that she wishes to allow the terms of the agreement to stand. Complainant shall be notified that in order to return to the status quo ante, she must return any benefits received pursuant to the agreement. The agency shall determine any payment due complainant, or return of consideration or benefits due from complainant, within thirty (30) calendar days of the date this decision becomes final, and shall include such information in the notice to complainant.
If complainant elects to return to the status quo ante and she returns any monies or benefits owing to the agency, as specified above, the agency shall resume processing complainant's complaint from the point processing ceased pursuant to 29 C.F.R. � 1614.108 et seq. If, however, complainant elects not to return to the status quo ante, i.e., not to return any consideration owing the agency, the agency shall notify complainant that the terms of the settlement agreement shall stand.
A copy of the agency's notice to complainant regarding her options, including the determination of consideration due or owing, as well as a copy of either the correspondence reinstating the complaint for processing or the correspondence notifying complainant that the terms of the agreement will stand, must be sent to the Compliance Officer, as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
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 19848, Washington, D.C. 20036. 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 (M0701)
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 19848, Washington, D.C. 20036. 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 (R0900)
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 (Z1199)
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 that the Court appoint an attorney to represent you and that the Court 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 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
December 14, 2007
__________________
Date
1 The settlement agreement also provides that the agency place complainant into the position of Statistical Assistant, GS-1531-07 at the VA Palo Alto Health Care System; approve the use of pay retention as delineated until Title 5, Code of Federal Regulations 536 in order to utilize complainant's skills and experience in the position of Statistical Assistant; and issue complainant a written reprimand in lieu of the December 13, 2001 suspension and upon the issuance of the written reprimand, restore any lost wages incurred by the suspension.
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0120073710
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120073710