U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Tommy R.,1 Complainant, v. Robert McDonald, Secretary, Department of Veterans Affairs, Agency. Appeal No. 0120162117 Agency No. 200H36422008101946 DECISION Complainant filed an appeal with this Commission alleging that the Agency breached the terms of a settlement agreement into which the parties entered. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Registered Nurse at the Agency's Medical Center facility in Philadelphia, Pennsylvania. Believing that the Agency subjected him to unlawful discrimination, Complainant contacted an Agency EEO Counselor to initiate the EEO complaint process. In September 20102 Complainant and the Agency entered into a settlement agreement to resolve the matter. The settlement agreement provided, in pertinent part, that the Agency agreed: IIa. To remove all information regarding Complainant's suspension and any other disciplinary history from the start of his employment through the date of this Agreement from Complainant's Official Personnel Folder; IId. Will [sic] provide a letter to Complainant indicating the dates of employment with the Philadelphia Veterans Affairs Medical Center and a point of contact for future inquiries. If contacted, the Agency agrees to provide only the dates of employment and state that it is their policy to only provide that information. On June 10, 2016, Complainant filed an appeal with this Commission alleging that the Agency was in breach of the settlement agreement, and requested that he be reinstated in his former position and be compensated for income lost since 2010. Complainant did not specifically identify the precise nature of the alleged breach, stating instead that: On May 31, 2017 [sic] I was offered a position at the Orlando VA Medical Center (CLC) contingent to review of my record at Philadelphia VA. I was told by Nursing Resources Manager at the Orlando VA Medical Center. On June 1, 2016 I was informed that they have decided not to move forward with the process for the position at the CLC. No other information was provided. Since this happened after requesting my file at the Philadelphia VA Medical Center, there must be something in the file that prevent[sic] me from being hired at the Orlando VA Medical Center or any other place. Since the agreement in 2010 it has been difficult to obtain a clinical job despite the fact that I moved to Florida. It appears to me that Philadelphia VA has not being [sic] compliant with their agreement. In its August 8, 2016 Appeal Brief, the Agency first noted that Complainant had failed to comply with the requirements of 29 C.F.R. § 1614.504(a) and the terms of the agreement itself, which hold that allegations of breach should first be brought to the Agency EEO Director. The Agency noted that Complainant did not first notify the Director but instead filed an immediate appeal with this Commission. The Agency further found that Complainant's allegation of breach was "purely speculative. He has not actually reviewed his (file) to see if any such information is in his file even though he has the ability to do so." For purposes of analysis we find that the Agency's August 8, 2016 Appeal Brief constitutes its Final Agency Decision (FAD) on Complainant's breach allegation. 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 the instant case, we find that Complainant has not presented sufficient evidence of any breach by the Agency. Complainant has not identified specifically what provision(s) was/were breached or the nature of any such breach. The fact that the Orlando VA job offer was withdrawn does not establish that the Agency breached the agreement as the withdrawal could have been due to other factors unrelated to the contents of Complainant's personnel file. CONCLUSION The FAD is AFFIRMED. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0416) 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 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. The requests may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 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 November 2, 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 The settlement agreement is undated. In its appeal statement, the Agency states that the agreement was signed in September 2010 but does not provide a specific date. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120162117 2 0120162117