policy compliance 2013

7/24/2019 Policy Compliance 2013

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D EP AR T M EN T O F V ET E RA NS A FFA IR S

O FF IC E O F R ES OLU TIO N M AN AG EM EN T

W AS HIN GTO N D C 20420

A P R . \ 0 2 0 1 3

Mr. Oliver B. Mitchell

P.o.

Box

21559

Long Beach, California 90801

Subject: Breach of Settlement Agreement Determination

1. This is in response to your claim that the settlement agreement between you and the

Department of Veterans Affairs ((VA) Greater Los Angeles Healthcare System

(VAGLAHCS), located in Los Angeles, California, has been breached. The settlement

was reached on March 15, 2011, to resolve your Equal Employment Opportunity (EEO)

complaints, case numbers 200P-0691-20091 02570, and 200P-0691-20111 01903.

2. The following are descriptions of the complaints resolved by the settlement

agreement:

Case Number 200P-0691-2009102570, Formal Complaint Filed on May 26,2009

On April 14, 2009, you contacted an EEO Counselor at the Office of Resolution

Management (ORM), Western Operations (WO) Field Office in Los Angeles, California.

You claimed that based on your race, color, sex, and sexual orientation, from

February 2008, through March 24, 2009, you were subjected to harassment and a

hostile work environment. On May

26 ,

2009, you filed a formal complaint of

discrimination. Your complaint proceeded through the administrative complaint process

and on November, 27,2009, you requested an Equal Employment Opportunity

Commission (EEOC) hearing. While your complaint was pending a hearing you agreed

to withdraw your compliant in exchange for the provisions in the March 15, 2011,

settlement agreement.

Case Number 200P :(}69'i-2011101903, No Formal Complaint Filed

On February 15, 2011, you contacted an EEO Counselor at the WO Field Office in Los

Angeles, California. You alleged that based on your color, disability, race, and reprisal,

you were reassigned; charged Absent without Leave (AWOL), and were not issued

P e rfo rm an ce A p pra is als fo r th e 2 00 9 a nd 2 01 0 rating periods. D u rin g th e in fo rm a l s ta te

of the complaint process, you agreed to withdraw your complaint in exchange for the

provisions in the March 15, 2011, settlement agreement.

3. The following is a description of the provisions in the settlement agreement which

provide you consideration for withdrawing your compliant.



Mr. Oliver B. Mitchell III

• Complainant hereby agrees to submit his immediate resignation to become

effective March 18, 2011.

• Complainant agrees not to apply for positions at the VA Greater Los Angeles

Medical Center (GLA) facility for a period of three (3) years from the date of

execution of this agreement.

• The Agency hereby agrees to provide Complainant with fully satisfactory

performance appraisals for the 2008-2009 and 2009-2010 years.

• The Agency hereby agrees to convert Complainant's time and attendance

records that now indicate Absent Without Leave (AWOL) to reflect Leave

Without Pay (LWOP) status.

• The Agency hereby agrees to pay Complainant a lump sum settlement

amount of $30,000, within sixty (60) days of the execution of this agreement.

• The Agency agrees not to disbar Complainant from Federal service in

connection with the period of employment ending March 18, 2011.

4. The record reflects that by letter dated August 26, 2011, we rendered a breach of

settlement agreement determination. You alleged that provisions (2.), (3.), (4.), (5.) and

(7.) had been violated. We determined that with the exception of provision (2.), the

provisions were satisfied. The evidence indicated that the facility initially processed

your resignation with an effective date of April 8, 2011, clearly contrary to the terms of

the agreement. In conjunction with our determination, we instructed the faci ity to rectify

this error. Subsequently, the facility provided a copy of Standard Form 50 (SF~50)

Notification of Personnel Action , reflecting that on December 23,2011, your

resignation date was corrected to March 18,2011.

5. On March 7, 2013, we received your current breach of settlement agreement

allegations. You indicated that you resigned in March 2011, and you have not been

employed by the VA or any other federal agency. You further indicated that in

February 2012, you began receiving pay stubs which continued to be generated by the

Defense Finance and Accounting Service (DFAS) throughout the entire year. The pay

stubs reflected that the agency pre-paid for your Federal Employee Health Benefits

(FEHB), which caused you to become indebted to the government; indicated that you

accrued varying amounts of both annual leave and sick leave; utilized Leave without

P ay L WO P ), and receiv ed a nom inal salary . Y ou further stated that one of the pay

stubs indicated that your Federal Employment Retirement System (FERS) retirement

data was changed and sent to the Office of Personnel Management (OPM) on

August 10, 2012, and despite your unemployment, in January, 2013, you received a

W-2 for tax year 2012. You also alleged that during the pay period ending on

August 11, 2012, your separation date was changed to May 22, 2011.




6.

You further claimed that the agency has engaged in acts of reprisal by deliberately

and knowingly causing you harm well after your resignation. You alleged that your

former supervisor, Mr. Mack Haymon, disclosed information regarding your prior EEO

activity to the California Employment Development Department. You alleged that this

violated the confidentiality clause contained in the settlement agreement, and resulted

in the denial of your unemployment benefits. You further stated that despite the

agency's promise not to disbar you from federal service, since your resignation, you

have been unable to secure employment in either the government or the private sector.

You feel that you have been black balled.

7. EEOC has held 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. (Regulation 29 CFR §1614.504(a)). The Commission has consistentiy heid that

settlement agreements are contracts between the complainant and the agency, and 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 (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.

Hyon v. United States Postal Service,

EEOC Request No.

05910787 (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 (external) evidence of any nature.

Montgomery

Elevator Co. v. Building Engineering Service. Co.,

730 F.2d 377, 381 (5th Cir. 1984).

The Commission makes determinations about the parties' intent in accordance with the

plain, ordinary and common sense of the words used in the agreement.

Klein v.

Department of Housing and Urban Development, EEOC Request No. 059440033

(1994).

8. A review of the record indicates that your allegations are beyond the scope of the

terms and conditions of the settlement. There is nothing in the plain language of the

agreement that anticipated or addressed events, such as those presently at issue.

Further there was no way to anticipate these subsequent events which occurred after

your separation from federal service. As stated above, the agency fulfilled its obligation

in the settlement agreement. Further, a confidentiaiiy clause was not incorporated into

the agreement. Therefore, we find that these matters are more appropriately raised as

subsequent events not covered by the terms of the settlement agreement, rather than a

breach of settlement agreement claim. EEOC regulations require that subsequent acts

of alleged discrimination should be processed as separate complaint (s) of

discrimination.

9. EEOC has held that any additional events that give rise to issues not covered by the

terms of the agreement can be viewed as subsequent acts of alleged discrimination.

EEOC Regulation 29 C.F.R. §1614.504(c) provides that allegations that subsequent

acts of discrimination violate a settlement agreement shall be processed as separate




complaints under 29 C.F.R. §1614.106 or §1614.204 rather than as breach allegations.

Stewart v. USPS, EEOC Appeal No. 01A34625 April 23, 2004 .

10. If you believe these actions were because of discrimination and you would like to

pursue an EEO complaint, you may contact an EEO Counselor at the ORM WO Field

Office at 1-888-737-3361 or (310) 268-3651. Please be advised that to be considered

timely raised, you must initiate your informal complaint within forty-five (45) calendar

days of the date of the incident. You may use March 7, 2013, the date your claim(s)

were received in this office, as your initial contact date.

11. The EEOC encourages the use of Alternative Dispute Resolution (ADR) to resolve

EEO complaints at the lowest possible level. There are many advantages to using

ADR. The Aiternative Dispute Resolution process offers the parties the opportunity for

an early, informal resolution of the dispute(s) in a mutually satisfactory manner. If you

are interested in using mediation to address the issues raised in your pending

complaint, please contact Mr. Paul Michae'l Maraian, Administrative Officer, at

(310) 478··3711extension 48731 or the National ADR Program Manager at

(202) 461··0280.

12. If you do not agree with this decision, in accordance with EEOC Regulation 29

C.F.R. § 1614.504(b) (c) and the appeal rights provided below, you may file an appeal

within 30 calendar days of receipt of this determination. You must serve a copy of the

appeal to the agency. If EEOC determines that the agency is not in compliance with the

settlement agreement and the noncompliance is not attributable to acts or conduct by

you, it may order compliance or it may order that the complaint be reinstated for further

processing from the point processing ceased, i.e., s ta tu s q uo ante . Therefore, any

benefits received pursuant to the settlement agreement must be returned before

.relnstatement.

A rm o ur v . Departm e nt

of

Defense

EEOC

Appeal

No . 01965593

June

24, 1997);

Kom is ke y v . De pa rtment

of

th e A rm y E EO C A p pe al N o. 0 19 55 69 6

September 5, 1996).

RIGHT OF PP L

This Final Agency Decision may be appealed within 30 calendar days of receipt. The

appeal should be addressed to Equal Employment Opportunity Commission, Office of

Federal Operations, P.O. Box 77960 Washington, DC 20013. If an appeal is filed,

EEOC Form 573 should be used. A copy of EEOC Form 573 is enclosed.

A copy of the appeal to the EEOC must also be sent to the VA Office of General

Counsel at the following address: Department of Veterans Affairs, Office of the General

Counsel (024), 810 Vermont Avenue, NW, Washington, DC 20420.

Statements or briefs in support of the appeal must be submitted to the EEOC within

3D-calendar days of the filing of the appeal. A copy of any such statement or brief.




including any statements made on EEOC's Appellant Docketing Statement, must also

be sent to the VA Offioe of General Counsel at the above address.

If an appeal is filed with the EEOC, the appeal and any subsequently filed statement or

brief must contain a statement certifying the date and method by which copies of these

documents were served on the VA Office of General Counsel.

Policy and Compliance Manager

Enclosure: EEOC Form 573



NOTICE OF APPEAL/PETITION

TO THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

OFFICE OF FEDERAL OPERATIONS

P.O. Box 77960

Washington, DC 20013

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