U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Amie H.,1 Complainant, v. Robert McDonald, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency. Appeal No. 0120162734 Agency No. 200P06052015103510 DECISION Complainant timely appealed to this Commission from the Agency's August 23, 2016 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 was an employee of the Agency's Loma Linda Healthcare System in Loma Linda, California. In May 2015, Complainant learned that she was not selected for the position of Registered Nurse (RN) Case Manager (Gastroenterology), which had been advertised under Vacancy Announcement No. LL-15-RLT-T38-1295683 ("VA-83"). Believing that her nonselection was the result of unlawful discrimination, Complainant contacted an Agency EEO Counselor to initiate the EEO complaint process. On August 12, 2015, Complainant and the Agency resolved the matter by entering into a settlement agreement ("the Agreement"). At issue in the instant complaint are paragraphs (a) and (c) of Provision 2 of the Agreement, which state: 2(a) The Agency hereby agrees to refer [Complainant's] initial application dated February 12, 2015... for consideration of [Complainant] as a candidate/applicant for the [Registered Nurse (RN) Case Manager (Gastroenterology)] position-Vacancy Announcement number LL-15-RI.T-T38-1446766-BU ("VA-66") no later than fourteen (14) days after the execution date of [the Agreement]. 2(c) The Agency further agrees that if the selectee for [VA-66] declines the position, the Agency will select the next ranked applicant not to exceed the top five (5) applicants. Complainant raised two separate allegations of breach for 2(a) and 2(c). The first, discussed for background purposes below, was resolved in an Agency Final Decision dated February 16, 2016. The instant complaint concerns Complainant's second breach allegation, raised on May 19, 2016. Complainant's argument relies on both the plain language of the Agreement and the Agency's interpretation of the Agreement in its February 16, 2016 decision. First Breach Allegation Complainant first notified the Agency that it was in breach of 2(a) and 2(c) on November 10, 2015. With regard to 2(a), the Agency failed to submit Complainant's application for inclusion on the "Certificate of Eligibles" (the list of applicants referred to the medical service for consideration) for the VA-66 position within fourteen days of the Agreement. As a result, Complainant's application was untimely and she was not considered for the VA-66 position. As for 2(c), Agency Management, unaware that the Agency was obligated under the Agreement to make successive offers to the top five applicants to the VA-66 position, decided to close the VA-66 position without making a selection. Upon receipt of Complainant's November 10, 2015 notice of breach, Management, Agency officials within its EEO and Human Resources offices, and the Labor Relations Specialist attempted to cure the breach by submitting Complainant's application on a more recent Certificate of Eligibles that had been submitted for review for a position identical to the Nurse (RN) Case Manager (Gastroenterology) described in VA-66. However, the new announcement, listed under Vacancy Announcement Number VA-2 LL-16-COI-T38-1544799-BU ("VA-99"), provided a different application deadline than VA-66, thereby resulting in a different pool of applicants on the Certificate of Eligibles. On February 16, 2016, the Agency determined that it was in breach as a result of miscommunications within Management and other relevant Agency officials. It further determined that while "well-intentioned," the officials' efforts to cure the breach were insufficient. "[Placing] Complainant's name on a more recent Certificate of Eligibles to move through the hiring process per the requirements of [the Agreement]... does not serve to put the Agency in substantial compliance with the terms and conditions of the Agreement." In finding breach of both Provisions 2(a) and 2(c), the Agency emphasized that the Agreement "explicitly includes VA-66 as the position for which [Complainant's] application was to be referred for further consideration." Complainant was provided with the option to reinstate her complaint for further processing or specific enforcement of the Agreement for Provisions 2(a) and 2(c). Complainant requested specific enforcement. Second Breach Allegation On May 19, 2016, Complainant, again notified the Agency that it breached 2(a) and 2(c). In April 2016, Complainant learned that she had been considered for, but was not selected for the Case Manager Position described in VA-66 and VA-99. However, the selectee was not on the Certificate of Eligibles for the VA-66 listing, rather, she had applied to the VA-99 announcement, indicating that the Agency based its selection off of the Certificate of Eligibles for VA-99 instead of VA-66. Although Complainant was considered for the position, she alleges that the Agency is still in breach because it did not make its selection from the applicants on the Certificate of Eligibles listed for VA-66, per the Agreement, and made its selection on April 16, 2016, over 30 days after Complainant requested specific enforcement. The Agency issued a decision on Complainant's second allegation, finding it had not breached the Agreement. 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 (Dec. 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 (Aug. 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 Serv., EEOC Request No. 05910787 (Dec. 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); Complainant v. United States Postal Serv., EEOC Appeal No. 0120140143 (Feb. 20, 2014). The Agency "reassessed" its finding related to Complainant's first breach determination, and in the instant case, determined itself fully compliant. Specifically, it reasons that by substituting the RN Case Manager position posted under VA-99 for the VA-66 position identified in the Agreement, it fulfilled the "intent" of the Agreement. Specifically, the Agency states that the "purpose, spirit, and intent of provisions 2(a) and 2(c) was to afford [Complainant] the opportunity to compete and be considered for the position of RN Case Manager (gastroenterology) irrespective of the vacancy announcement number associated with the recruitment effort." In other words, because the position description under VA-99 was identical to that of VA-66, considering Complainant's application for consideration on the List of Eligibles for VA-99, satisfied its specific performance obligation under Provisions 2(a) and 2(c). Among other things, Complainant argues, and we agree, that the Agency is still in breach, regardless of its "reassessment" of the parties' intent. A plain meaning interpretation of the Agreement must take into account that the parties identified the RN Case Manager position posted under vacancy announcement number VA-66 specifically in both 2(a) and 2(c). We note that when the parties entered into the Agreement, the Agency was aware that identical positions could be listed under different vacancy announcement numbers. For instance, the Agreement arose from Complainant's nonselection for a position listed under vacancy announcement number VA-83, which describes the same RN Case Manager position found in VA-66 and VA-99. Given the parties' decision to expressly include the vacancy announcement number associated with the RN Case Manager position in the Agreement, we find the plain meaning of 2(a) and 2(c) obligates the Agency to consider the eligible applicants to the VA-66 posting. Further indication that this was the parties' intent when considering whether Complainant would be impacted if the Agency disregarded the VA-66 specification, as it did when it used the Certificate of Eligibles generated from VA-99 to select an applicant. Even though the RN Case Manager position descriptions are identical in VA-66 and VA-99, each vacancy announcement was advertised for a different application time frame, thereby garnering different applicant pools. While Complainant is not guaranteed an RN Case Manager position, the probability that she will be selected and the sooner that decision is made is increased based on the application time frame and the applicant pool. Complainant aptly notes that the Agency's rationale for using the applicant pool for VA-99, that it is more recent and Agency management failed to timely submit Complainant's name for VA-66, is based on the Agency's own actions in breach of the Agreement and are not a valid reason to delay a decision by overlooking the existing Certificate of Eligibles for VA-66. We find that the Agency failed to specifically perform its obligation under 2(a) and 2(c) when it offered the RN Case Manager position to an applicant to the VA-99 posting, not the VA-66 posting. If, as the Agency appears to argue, the parties intended for the Agreement to apply to any RN Case Manager vacancy announcement regardless of the vacancy number, it should have been specified in the Agreement. To comply with provisions 2(a) and 2(c) of the Agreement, the Agency must consider and select one of the top five applicants on the Certificate of Eligibles generated from the applicants that responded to the VA-66 posting, including Complainant. On appeal, Complainant requests specific performance of provisions 2(a) and 2(c) of the Agreement. CONCLUSION Accordingly, the agency's decision finding no breach of the settlement agreement is REVERSED and the case is REMANDED to the agency in accordance with the following Order. ORDER 1. Within ninety (90) calendar days of the date this decision becomes final, the Agency is ORDERED to specifically implement Provision 2, paragraphs (a) and (c) of the Agreement by: a. Selecting an applicant for the position of Registered Nurse (RN) Case Manager (Gastroenterology), from the Certificate of Eligibles, which includes Complainant, generated from the applicants to VA-66, in accordance with 2(a); and b. If the selectee declines the Agency's offer for the VA-66 position, making the same offer to the next ranked applicant from the VA-66 Certificate of Eligibles, not to exceed the top five (5) applicants, in accordance with 2(c). 2. Within thirty (30) calendar days of completion of the ordered action, 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 specific performance has been achieved for 2(a) and 2(c), and proof of payment of attorney fees. 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. ATTORNEY'S FEES (H1016) If Complainant has been represented by an attorney (as defined by 29 C.F.R. § 1614.501(e)(1)(iii)), 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 the date this decision was issued. The Agency shall then process the claim for attorney's fees in accordance with 29 C.F.R. § 1614.501. 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 (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 January 17, 2017 __________________ 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 0120162734 2 0120162734 8 0120162734