U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Aurore C.,1 Complainant, v. Robert McDonald, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency. Appeal No. 0120150961 Agency Nos. 200P-0663-2012101407; 200P-0663-2011102139; 200P-0663-2013100371 EEOC Hearing Nos.551-2012-00005X; 551-2013-00017X DECISION Complainant timely appealed to the Commission from the Agency's December 12, 2014 decision, dismissing Complainant's breach allegation. We accept the appeal under the authorities set forth at 29 C.F.R. § 1614.402 and 29 C.F.R. § 1614.405. BACKGROUND At the time of events giving rise to her complaints, Complainant worked as a Nurse at the Agency's VA Puget Sound Health Care System facility in Seattle, Washington. On January 7, 2013, Complainant and the Agency entered into a settlement agreement to resolve the above-referenced EEO matters. The settlement agreement provided, in pertinent part, that Complainant agreed to: (1.2) Waive and Cancel Further Proceedings: To waive and give up all rights to administrative processing of any and all complaints and employment claims...that could have been raised prior to the date of this Agreement or that might be raised after the date of this Agreement, including but not limited to, a waiver of: (a) the right to pursue any EEO complaints via the VA's Office of Resolution Management (ORM) or the Equal Employment Opportunity Commission... and (l) all other civil or administrative processing of any issues in whatever forum; (1.9) Future Employment at Agency (VISN 20): Complainant shall not hereafter apply for, or accept, any position whether full time or part time with the United States Department of Veterans Affairs (VA), which includes the states of Washington, Idaho, Alaska, and Oregon; (1.8) Resignation: To voluntarily resign; (2.1) [Both parties agree] the Agency will enter Complainant's voluntary resignation on VA Standard Form 52; (2.2) Payment: To pay the total lump sum of one hundred twenty six thousand one hundred and ninety three dollars and no cents. ($128,193.00)...no later than ninety (90) days from the date of this agreement; (2.4) Work Reference: For two (2) years from the date of this agreement, the Human Resources Office, or that person's specific designee, will be responsible for providing to prospective employers a work reference regarding Complainant, stating only the dates of employment, job title, and if asked, that it is the policy of the VA Human Resources Management to give only this information, and that Complainant's employment at Agency ended due to resignation. The parties specifically acknowledge and agree that Complainant is solely responsible for directing communications from any potential future employer to the Human Resources Office, or that person's specific designee, in the manner described herein... and that Complainant will not hold VA liable or in breach of this Agreement for responses to communications not so directed by her. In addition, the Agency will provide a letter to Complainant dated December 18, 2012, signed by [named official], a copy of which is attached as Exhibit B; (3.1) Entire Agreement: This Agreement is the entire Agreement between the parties and there are no other items to this Agreement except those that it specifies; (3.5) Confidentiality: Neither Complainant nor the Agency will disclose this Settlement Agreement or its terms, with the following exceptions: (1) to authorized VA, EEO, ORM, EEOC, or other officials responsible for implementing the Agreement....It should be understood that Complainant shall be prohibited from making any complaints or negative comments to any member of Congress or their staff, or any newspapers or media or their staff, or any other public forums, about the facts of this Settlement Agreement or the facts or conditions that led up to this Settlement Agreement. (Emphasis added); and (3.7) Compliance: This Agreement shall be made a part of the record of the Complainant's above referenced discrimination complaint and remains enforceable under the jurisdiction of the EEO following dismissal of this case. The Agency agrees that, in the event that its agents and employees fail to comply with any of the terms set forth herein for any reason not attributable to action or inaction by the Complainant, it will reopen the EEO complaint...for further processing...provided that the Complainant must first bring any such allegation of breach of the Agreement to the attention of the Deputy Assistant Secretary for the Office of Resolution Management...within thirty (30) calendar days of her discovery of such breach. The Agreement was signed on January 7, 2013. A year later, Complainant applied for the position of Nurse Practitioner (Wound /Ostomy) at the VA in Loma Linda, California. On February 18, 2014, the VA at Loma Linda extended Complainant an offer, which she accepted. She was given a start date in April.2 The record also shows that the Seattle VA Human Resources Officer and the Director of Nursing, Surgical Service acknowledged contact with the California VA, stating they "were aware of an inquiry from a VA in California in March of 2014." The Seattle Director faxed the Loma Linda officer a copy of the agreed-upon reference letter. She told the requester that "any additional information was available from HR" and gave the requestor the number. On or about March 20, 2014, Loma Linda rescinded its offer to Complainant. The Agency refused to give Complainant reasons for the withdrawal. When Complainant called to inquire as to why the offer to her was rescinded, the Human Resources Representative (HR) stated that it was due to something her former supervisor at the Seattle VA had said. Complainant was not allowed to contact the individual at Loma Linda to get verification of what she was told. At the end of May of 2014, Complainant was informed by another individual that the other individual (informant) saw "a communication that clearly violated the confidentiality provisions of the Agreement." By letter to the Agency received on June 24, 2014, Complainant informed the Agency that she believed the Agency was in breach of the settlement agreement, and requested that the Agency implement its terms. Specifically, Complainant alleged that the Agency failed to honor the confidentiality provisions and gave negative feedback to the prospective new employing office. The Agreement specified that the restricted area was the VISN 20, which did not reference the State of California as one of the states to which Complainant could not apply for employment. Complainant stated that she observed "a related pattern of activity ...in communicating with VA HR in Montana and Tennessee." Complainant also stated her belief that "the pattern is suspicious," and that "after the final contact with Seattle was made, [led her] to conclude that there is retaliation involved." In its December 2014 final decision, the Agency dismissed the breach claim, as untimely filed, without a finding as to whether it was in compliance with the terms of the settlement agreement. The Agency stated that it received the claim on July 24, 2014. The Agency applied the doctrine of laches to dismiss the breach claim. The Agency reasoned that Complainant "knew or should have reasonably suspected" the violation on March 21, 2014. This appeal followed. On appeal, Complainant argues that the Agency erred in claiming that the breach allegation was untimely. Complainant maintains that she did not know of the contract violation, and could not reasonably have known of it, until being informed of it. In addition, Complainant asserts that "VA cannot claim that there was an 'unreasonable delay' when it was its own refusal to inform Plaintiff of the reason for rescinding the job offer that caused her not to know of the breach." She also asserts that the Agency should be barred by the doctrine of unclean hands of asserting a laches defense, because it refused to lift "the gag order," barring Complainant from discussing the factual underpinnings of this matter. 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). We find that the Agreement was knowingly and voluntarily entered. Initially, we note that two provisions of the agreement rely on a prospective waiver of rights and are unenforceable. First, we note that paragraph 1.2 of the Agreement required Complainant to waive future and unknown disputes in any forum.3 It is axiomatic that parties can only resolve actual existing disputes. See Complainant v. Department of the Army, EEOC Appeal 0120133395 (April 1, 2015) ("We think it clear that there can be no prospective waiver of an employee's rights under Title VII."). To the extent that the Agreement purports to require Complainant to waive "and give up all rights to administrative processing of any complaints and employment claims...that might be raised after the date of this Agreement," we find that language is against public policy and invalid. Second, the Agreement, at paragraph 3.5, expressly "prohibits [Complainant] from making any complaints or negative comments to any member of Congress or their staff, or any newspapers or media or their staff." We view this provision as an unlawful, overly restrictive confidentiality limitation, because it expressly deprives Complainant of her ability to contact Congress and otherwise limits her First Amendment Rights to communicate with the media about any of her EEO claims. However, rather than invalidate the entire agreement, which would undermine the intent of the parties, we will construe the Agreement in a way that allows the remaining provisions to stand. With these two exceptions, which we believe are severable, we find that the Agreement is otherwise valid and binding. On appeal, Complainant argues that the Agency caused her to incur damages as a result of rescinding its offer and has engaged in subsequent acts of denying her employment outside of the VISN 20. The Agency argues that Complainant's appeal should be denied, because Complainant's breach notice was not timely submitted. Timeliness We find that the Agency did not provide evidence to support its conclusion that Complainant's breach claim was untimely. We also find that the Agency may have contributed to the delay by its refusal to provide Complainant with the reasons for the rescission of the Loma Linda offer. Therefore, we do not find that Complainant's breach claim should be dismissed as untimely filed. Non-Compliance We note that VA does not deny that a breach occurred. We find that the record before us supports the breach claim. The Agreement limited the information that was to be revealed. After contact with Complainant's former supervisor at Seattle, the Loma Linda VA rescinded its offer to Complainant. It is clear that by entry of a voluntary resignation, Complainant did not intend to impose upon herself a nationwide bar to future employment. There is nothing in the Agreement that would require Complainant to forego employment in areas outside of the VISN 20, since the terms of the Agreement explicitly list the states (within VISN 20) where Complainant would not seek re-employment and did not expressly mention any other area. We find that the Agency has not shown that, in limiting future employment to certain states, it was simultaneously restricting employment beyond the VISN 20. If the Agency intended to disallow or limit all future employment beyond VISN 20, a nationwide limitation should have been specified in the Agreement, rather than the expressed reference to specify VISN 20. For these reasons, we do not find that the Agency has shown that it was in compliance with the terms of the Agreement. When we find a breach, we have two choices: specific performance or reinstatement of the underlying complaints. If Complainant choses to reinstate her complaint, she would have to return any monetary relief which she has obtained and the voluntary resignation would have to be rescinded. If she chooses specific performance, we require that the parties be held to the terms of the Agreement. Therefore, we order that Complainant be provided the option of specific performance of the enforceable provisions, without the prospective waivers and restrictions on Congressional contact, or reinstatement of her complaint. Finally, to the extent that Complainant may be raising new claims of retaliation, she is advised to contact the EEO Counselor to raise her claims, because they are viewed as subsequent new actions, unrelated to this breach claim. CONCLUSION Accordingly, we REVERSE the Agency's Determination and REMAND the matter to the Agency for action consistent with the Order below. ORDER The Agency is ordered to take the following remedial action: 1. Within thirty (30) calendar days of the date this decision becomes final, 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 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 monetary benefits received pursuant to the agreement. The Agency shall determine its obligations due to Complainant, and 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. 2. Within sixty (60) calendar days of the date this decision becomes final, the Agency is ordered to compensate Complainant to any proven pecuniary losses she incurred by the rescission of the Loma Linda offer. 3. If Complainant elects specific performance, the Agency shall notify Complainant that the terms of the settlement agreement shall stand and the Agency will abide by all of the terms of the Agreement, including the non-disclosure provisions, but without the prospective waiver of rights and prospective prohibition on communications with Congress, the media and the EEOC. 4. If Complainant elects to reinstate her EEO complaint, the Agency shall resume processing the EEO complaint from the point processing ceased. The Agency is ordered to process the remanded claims in accordance with 29 C.F.R. § 1614.108 et seq. The Agency shall acknowledge to the Complainant that it has received the remanded claims within thirty (30) calendar days of the date this decision becomes final. The Agency shall issue to Complainant a copy of the investigative file and also shall notify Complainant of the appropriate rights within one hundred fifty (150) calendar days of the date this decision becomes final, unless the matter is otherwise resolved prior to that time. If the Complainant requests a final decision without a hearing, the Agency shall issue a final decision within sixty (60) days of receipt of Complainant's request. 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. A copy of the Agency's letter of acknowledgment to Complainant and a copy of the notice that transmits the investigative file and notice of rights must be sent to the Compliance Officer as referenced below. A copy of the Agency's letter of acknowledgment to Complainant and a copy of the notice that transmits the investigative file and notice of rights must be sent to the Compliance Officer as referenced below. ATTORNEY'S FEES (H0610) If Complainant has been represented by an attorney (as defined by 29 C.F.R. § 1614.501(e)(1)(iii)), he/she is entitled to an award of reasonable attorney's fees incurred in the processing of the complaint. 29 C.F.R. § 1614.501(e). The award of attorney's fees shall be paid by the Agency. The attorney shall submit a verified statement of fees to the Agency -- not to the Equal Employment Opportunity Commission, Office of Federal Operations -- within thirty (30) calendar days of this decision becoming final. The Agency shall then process the claim for attorney's fees in accordance with 29 C.F.R. § 1614.501. 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 (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 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), 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 (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 (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 April 14, 2016 __________________ 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 She states that she incurred more than $4,000 in relocation expenses, based on the approval and assurance of the VA. 3 The Agreement stated at paragraph 1.2 that Complainant was agreeing to waive any claims "that could have been raised prior to the date of this Agreement or that might be raised after the date of this Agreement [emphasis added] ...". --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120150961 9 0120150961