Breach of Settlement August 26, 2011

8/9/2019 Breach of Settlement August 26, 2011

1/7

DEPARTMENT OF

VETERANS AFFAIRS

OFFICE OF RESOLUTION

MANAGEMENT

WASHINGTON

DC2A42O

'l

'-i-l

2

i

tuir. Oliver

B.

lVlitchell

Ill

P.O.

Box 852472

Mobile, Alabama

36685

Subject:

Breach of Settlement

Agreemeni

Determinaiion

1.

This

is in response to

your

letter dated June

'15,2A11.

You claimed ihat the

settlement agreement

you

entered

inio on March 15,2A11,

with the

Depadment

of

Veterans

Affairs

(VA)

Greater

Los Angeles

Healthcare Sysiem

(VAGLAHCS),

located in

Los

Angeles,

California,

has been

breached.

The setilement agreemeni

resolved

your

Equal

Employmeni Opporlunity

(EEO)

complaints, case

numbers

200 P-069 1

-2009 1 0257

0, and

20

0

P-069 1

-20 1

1

1 0 1

903.

2,

A

review of the events

that resulied

in

the

settlemen'i agreement

indicates

that

on

April

1

4,2A09,

you

contacted an

EEO

Counselor

ai

ihe

Office of Resolution

Management

(ORM),

Western Operations

(WO)

Fielcl Office, Iocated

in

Los Angeles,

California.

You

ciaimed that

based on

your

race, color, sex, and sexual

orientation,

you

were

subjected

to

harassmen'i and

a hostile work environmeni

from

February

2AAB,

through

iMarch

24,20A9.

On

May 26, 2009,

you

filed

alarrnal complaint

of discrimination,

which was

partially

acceptecl

for inrresiiga'iion

on June

24.,20A9.

Subsequent to

the investigation,

you

requested that

ihe

Equal

Employmeni

Opponunity

Commission (EEOC) conduct

an

administrative

hearing.

In

the

interim, prior

to

the

conclusion

of

the

hearing,

you

contacied

an EEO Counselor ai

ihe

office cited above

on

February 15,

2A11

,

and case number 200P-0691-201

1

101903 was

established.

'/ou

claimed ihat

based

on

your

color, disability, race,

and reprisal,

you

were reassigned;

charged

Absent

wiihout

Leaire

(A\I./CL),

and lrrere

not

issi,ied

Performance

Appraisals

for

ihe

2009 and 2010 rating

periods.

Both cases were settled

on

il/arch

15,

2A11

,

during the hearing

stage of the adrninistrative

process

for case number

200P-0671-2A0910257A.

AlthouEh still at

ihe

infoi'mal

phase,

case number 200P-

0691-201

1

101903 was also enveloped

into

the

agreemeni.

3.

Synopsized,

you

alleged that the Medical Ceirter

rriolaied

the terms

and

conditions ot'

ihe

settlement agreemeni, with

respect

io

prorrision 2,

as

e',riCenced

by

its iailure to

properly

separate

you

from

Federal

Service.

'/or:

further alleged thal as a

consequence,

you

have accrued four

hundrecl

eighty

ancl

one

half

(480.50)

irours

ci

Leave

without

Pay

(LWOP)

since

the

daie of separation;

you

becanre indebled

'io

ihe

Go'rernmeni

because the

iViedical

Center erroneously

continued

io

pay

you

beyond the

agr-^ed upon

separation daie;

yor-r

became

ineligible for

Ternporary Continuation

oi

Correrage

(TCC)

underihe Federal Employees Heal'ih

Benefits Prograrn

(FEHB);

yot,r

became

indebied

to

Benefeds ior

unpaicl

health

care

premiums,

and

became

ineligible


2/7

Page

2

Mr.

Oliver

B. Mitchell lll

for

Unemploymeni

lnsurance

benefits.

You furlher

asserted thai

you

were not

provided

with

a

Request for

Personnel Action

(SF-52),

or a

Notification

of Personnel

Action

(SF-

50), reflecting

your

separation,

which

you

believe

has negatively

affected

your

abiliiy

io

secure

Federal

employment.

You averred

that the

Medical

Cenier

required

you

to

submit a resignation

in order

to

achieve

the settlement

agreement, which

you

consider

to

be

a

forced

resignation,

or constructive

discharge.

4.

You

fuilher

alleged ihat

in

violaiion

of

provision

4, the

Medical Center

failed

to

pro'ride

you

vrrith copies of Ferlormance

Appraisals for

rating

periods

2008-2009,

and

2009-2010.

ln addition,

you

stated that,

in

violation of

provision

5,

you

have noi beeir

furnished

urith

copies of

your

Time

and

Attendance

records that

reflect thai

your

AWOL

charges

were converted

to

LVVOP.

You also

stated that

contrary

to

provision

7,

ycu

have

been barred

from Federal Senrice

in so

far

that

the

terms

and condiiions

of

the

settlement

agreement,

as

set fofth

in

provision

3,

preclude

you

from

applying

for

positions

at the

VAGLAHCS for three

(3)

years.

The terms

and conditions

of

the

settlement agreement at

issue are

stated

as

follotris:

2.

Complainant hereby

agrees to submit

his

immediate

resignation to

become

effective

March 18,

2A1

1.

3.

Complainant

agrees

not

to

apply

for

posiiions

at the

VA Greater Los

Angeles

Medical

Center

(GLA)

facility for a

period

of

three

(3)

years

from

ihe

date

of

execution

oi this agreernent.

4.

The

Agency hereby agrees

to

provide

Complainani

with

iully saiisfactory

pedormance

appraisals

for the 2008-2009

and

2009-2UA

years.

5.

The Agency hereby agrees to

conveft Complainant's

time

and aitendance

records

thai

now

indicaie Absent

Without

Learre

(AWOL)

to

reflect Leave

Without

Pay

(LWOP)

status.

7.

The

Agency agrees not

to

disbar

Complainant

from Federal service

in

connection

with

ihe

period

ot'employment

ending March

18,20'11.

5.

EEOC has

held

that any

seiilemeni

agreement

knowingly

and voluniarily agreed

io

by

ihe

parties,

reached

at any stage

of

the complaint

process,

shall be binding

on

both

parlies. (Regulation

29 CFR

S1614.504(a)).

The Commission

has

consistently held

thai

settlemeni agreements are coniracts

between

the complainant

and

the

agency, and

it

is

the

intent of

the

parties

as expressed in the

contract, not

some

unexpressed

intention,

that controis the

contraci's

construction.

Eggleston

v. Departrnent

of

Veterans

Affairs,

EEOC Requesi Nlo. 05900795

(1990).

ln

ascertaining the

intent of the

pafties

with

regard to the ierms

of a

settlement agreemeni,

the

Commission

has

generally

relied

on

the

plain

meaning

rule.

Hyon

v.

United

Sfafes

Postal

Seruice,

EEOC Request

l'.Io.

0591A787

(1991).

This

rule siates that

if

the

writing appears io

be

plain

and

unarnbiguous

on

iis

face,

its

meaning

must be determined

from ihe four corners

of

the


3/7

Page

3

Mr. Oliver

B.

iVitchell lll

instrument

withoui

resort to exirinsic

(e;


4/7

Page

4

Mr. Oliver

B.

Mitchell lll

L With

respect

to

provision

4

regarding the

promise

to

proriide

you

with the

Performance Appraisals described above,

indicated

that

on March

21,2411,

the documents were sent to

you

by

subrnitted

copies

of the

Performance

Appraisals in

question

well

as

the

electronic

mail message

that transmitted the

documents to

yot-t.

10.

Fufiher,Ilindicated

ihat

in compliance

with

provision

5,

your

AWCL

charges were conveded

to LV\/OP;

and that although the terms

of the settlernent

agreement do

noi

require

it,

you

will be

provided

with copies

of

the corrected iime

cards.

In

support of his coniention, by electronic mail

message daied Augusi 3, 2011,

Iprovided

a

copy

of

your

Leat/e

Used Summary

for

ihe

period

encompassing May 1

,

2009

through July

26,

2011

,

which does noi reflect any remaining

AWOL

charges.

11.

With

respect to

provisions

3 and

7,Il=tated

that the

Medical Center

has

not

disbarred you from

Federal

Service, and

has

taken

no steps

io

do

so.

According to

the terms

of the settlement,

you

only agreed that

you

would not apply for

positions

at

VAGLAHCS

for

a

period

of

three

(3)

years,

which

this

office agrees has

no

effeci

on

your

right

to

apply elsewhere.

12.

Subsequent to our receipt

of

the Medical Center's initial response, as described

above,

we

requested

clarifying

information.

By

elecironic mail messages

datecl

juiy

i 2, ZAi i

,

juiy

22,

2Ai 1

,

aiiti Juiyi 2E,

2Aii

,

ti-re ivieuiicai Center-

was

askeci if

yoii

agreed

to

provide

pen

and ink changes

io

the setilement agreemeni,

permitting

the

use of

April

B,

2A11

rather

than

March

18,2011,

as

your

resignation date;

this

office

requested a copy

of

the SF-52

reflecting

your

resignation;

asked specifically when the

facility became

aware

that

an

error had

been

made

in so far

thai

your resignation lvas

not

processed

in accordance with the terms of ihe settlement agreement, inquired as to

when

the

resignation action was actually

processed

and whether

you

continued to

report

for duty

or

were

carried in an LWOP status subsequent io

March 18,

201

1,

ihe

date

you

should

have been separated, and

further

asked

if

your

e-OPF

had

been

updatecl to

reflect the

resignation.

This office

received

no response

to

the

questions

posed

above.

13.

After careful contemplation of the facts as

presented,

and the

evidence obtained

from both

you

and the Medical Cenier, it is determined that some, but not all

of

the

provisions

in

dispuie were

satisfied.

Specifically,

ure

concur with the Medical Center's

position

that provisions

3

andT

do

not

disbaryou

from

Federal

Service.

The only

proviso

thai

makes reference to

prospective

employment simply

precludes

you

from

applying

for

positions

ai

one facility, VAGLAHCS, for a three

(3)

year

period.

These

provisions

have no bearing on

your

ability to apply for, and accept

employment at any

other

VA

installation

or

other Federal

Agency.

Fufiher, the Medical Center

submrtted

ervidence that

indicates

that

you

were

provided

copies

of

Performance Appraisals

reflecting

fully satisiactory

levels

of achievement

for

the

20A8-2009 and 2009

-2A10

rating

oeriods;

hence

ii're

consider

provision

4 also satisfied.


5/7

Page 5

Mr. Oliver

B. Mitchell

lll

14.

Although

provision

5

does

not specify the

dates

you

vvere

charged A\

/OL,,uvhich

the

Medical

Center

promised

to

conrveri

to

LWOP, a review of

your

Lea're

Used

Summary

for the

period

of May

1,

2009 through

July

26,2011,

does

not reflect

any

AWOL

charges,

hence we

consider the

l\fledical

Center in

compliance

with this

provision

15.

Howerrer,

despite

compliance

with the

aborre

described terms and

conditions, the

Medical

Cenier

stands in breach

of

provision

2. By its oi,vn admission

due

to

an

administrati,re

oversight,

Complainani's

separation

rrias

not accomplished

with ihe

effectirre

date

of

March

18,2011,

per

paragraph

2

of

the

agreement.

Complainani

was

actually

paid

as

if

on

duty

through

April

B, 2011.

VVe note that thereafter,

you

were

placed

in

a

non-pay

status.

Because the illedical

Center

realized

iis

error shotlly

after

your

resignation

should have

been effected, had

it implemented

immediate steps to

rectify the

error,

it would not have resulted

in a violation of

the settlemeni agreement.

Be

ad';ised

that

EEOC has held

ihat

if

an

Agency cures

a breach

during

the

35 day

period

after

becoming aware

of the

rriolation,

it

will be deemed to

be

in

compliance.

See

Caballero

v.

Secretary

oi

Air Farce,

EEOC

Appeal

No.

0142212127

eAffi),

Eckholm vs. the

Department

of

Veierans Affairs,

EEAC

Appeal No.

0120091193,

(April

29, 2010).

16.

The record

reflects

thai

you

continued

io

be carried

on VA

employment rolls

in

a

non-pay

status at

least

until

mid- June

2011,long

in

excess of the

35 day

oppodunity

period

in which

to

remedy

the breach.

According

to

a series

of

electronic mail

messages

transmitiecj beiween

yoLl,

II

at,.illbeiweert

June 3,2011,

and June 15,2011, therewas

an on-going

discussion

regarding which

date would be

used to effect the

resignation; March

18,201'1,

or

April

8,2011.

This is

clearly indicative

that

your

resignation had

yet

to

be

processed.

The electronic

mail

message exchanges are

replete

with

requests

fromlfandJJthat

you

make

pen

and ink changes to the setilement

agreement,

identifying

April 8,2011,

as the

agreed

upon resignation date. Had

you

done so,

the

pen

and ink changes

would

have

superseded the

original

terms of the

agreement,

however ihis

you

declined to

do.

We

recognize

the

Medical Center's contention

that

ycu

orally agreed to allow

management

to

use

April

8,2011,

as the effective date,

and the

lVledical Center

referenced the

electronic mail messages

cited

above

in suppori

of

this contention.

Holvever,

we find

that

these

communications

were outside ihe scope

of

the settlement

agreement

and have no

present

consequence,

padicularly

because

when

they

occurred, the

iime frame

in urhich

to cure

ihe

breach had

elapsed,

17.

As a

result of

this deterrnination, you

may now

elect

to

harre

your complaints

reinstated, or

you

may request

ihe

specific

enforcemeni of

pro,rision

2.

We noie

thai

in

your

correspondence to

this office,

you

originally requesied

reinstatemeni

of

your

complaints.

However,

be advised

that

if

you

proceed

with

this

eiec'tion,

you

will reveft to

status quo

ante , which means

r/ou

will

be

returned

io

the

condiiions

thai

were

present

prior

to the

settlement

aqreement.

Your resignaiion

will be set

asrcie; ihe

Perf,ormance

Appraisals

issued

pursuant

io

provision

4

rryill

be rescinded;

ihe AWOL

charqes that

were converted

to

LWOP

as

sei

forlh

in

provision

5

will be

reinstituted;

ihe

thitlv


6/7

Page 6

Mr. Oliver

B. Mitchell

Ill

thousand

dollars

($30,000

00)

awarded to

you

in accordance

with

provision

6, which the

Medical Center

demonstrated that

it

did disburse,

musi be

repaid

PRIOR to

the

reinstatement

of

vour

complaints,

and

you

will no lonqer

be

foreclosed from

appir/inq

for

positions

at the

VAGLAHCS.

Nonetheless,

if

you

elect

to

have

your

complaini

reinstated,

the

ORM

WO

Field

Office,

will be informed

of your decision, and

urill

reinstate

your

complaint,

case number

200P-0691-20091A257A

at the hearing stage,

as

that

is the

point

at

which

processing

ceased by

virtue of the

settlement agreement,

and

complaint

case number

200P-0691-2011101903

will be re-opened

at tl're

informal

phase

of ihe

complaint

process

for

the

reasons

cited above.

18. Conversely,

should

ycu

optto

have

provision

2 specificaily enforced,

you

rnay

retain

the benefits

you

received

pursuant

to

the terms

of the

agreement.

ln addition,

in

orderto

satisfythe

conditions

setforth

in

provision

2,the

Agencywill

be advised

of

your

decision

and instructed

to

correct

your

records

to

reflect the

March

18,2411,

resignation

date, and

to

rectify

any

ill

eflects

you

experienced

as

a consequence

of its

error, such as allegedly causing

you

to exceed the

time

limit

to

obtain

TCC and

health

benefits.

Be advised that once

this resignation

date is effected,

you

r,vtll

incur

a debt to

the

Government because

you

continued to

receive

your

salary

until April 8,2A11.

However,

once

you

receive

official

notification of the debt,

you

may

i'equest

a

waiver of

payment premised

upon the

Agency's

administrative

oversight.

We have enclosed

an

election

form reflecting the options

described

aborre.

Please compleie

and return the

form

in

accordance

with

the

instruciions contained

therein.

19. Finally, with respeci

io

your

contentions that

you

have amassed

in excess of

four-

hundred

(400)

hours of LWOP;

you

became

indebied to the Government;

you

were

rendered ineligibte for coniinued

healih

care

benefits and

Unemploymeni: benefits;

you

were denied copies of personnel

and

time and

attendance

documents,

and forced

to

resign,

please

be advised ihat

we find that these maiters

are more appropriately

raised as allegations

of

discrimination

rather

than

a breach of


claim. EEOC

regulations require that subsequent acts

of

alleged discrimination should

be

processed

as separate complaint

(s)

of discrimination.

See

Sfer,,vart

v.

USPS.

EEOC

Appeal

No. 01A34635

(April

23,

2004); Best

v. USPS,

EEOC

Appeal

l{o.

01433918

(June

3,

2A04).

lf

you

wish

to

pursue

these

matters,

ycu

may

contac'l an

EEO

Counselor

ai

the ORIV1 WO Field

Office,

at

1-888-737-3361

or

(310)

268-3651

. Please

be advised thai

to

be considered timely

raised,

you

musi

initiaie

your

inforrnal complaini

within

forty-five

(45)

calendar days of the

date of the

incident(s).

You may

use

June

16,201'1, as

your

initial

contact

date,

as

that

is

the date

your

claim(s) were

received

in

this

office.

2A.

ff

you

do

not agree uiith

this decision,

in accordance

with EECC Regulation

29

C.F.R.

S

1614.504(b)

(c)

and the

appeal righis

prorrided

belorrv,

yoLr

mayfile

an appeal

within 30 calendar

days of receipt of this

determination.

You

must serve a

copy

of

the

appeal

to

the

agency.

lf

EEOC

determines

that the agency

is not

in cornpliance with the


and the noncompliance is

not

atiributable io

acis or conduci by

you,

it may order compliance or

it

n'lay

order that

ihe

complaint be

reinstated

for

fufther


7/7

Page

7

Mr. Oliver

B.

Mitchell

lll

processing

from the

poini processing

ceased, i.e., sfafits

quo

anie.

Therefore,

any

benefits received

pursuant

io

the

settlemeni

agreemeni

must be returned before

reinstaiem ent.

Armour

v.

Departmeni of Defense,

EEaC Appeal

Na.

01965593

(Jttne

24,

1997);

Komiskey

v. Department

of the

Army, EECC

Appeal

No. A1955696

(September

5,

1996).

RIGHT

GF

APPEAL

This

Final

Agency

Decision

may

be

appealed

within

30

calendar

days

of

receipi.

The

appeal should be addressed

to

Equal Employment Opporlunity

Commission,

Office

of

Federal Operations, P.O. Box 77960, Washington,

DC 20013

li

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 Ofiice of General

Counsel

at

the following address: Department

of

Veterans Affairs, Oflice

of

the General

Counsel

(A2q,810

Vermont Avenue,

NU'/,

Washington,

DC 20420.

Statements or briefs

in

support

of

the appeal must be submitted to the

EEOC within

3O-calendar days of the filing of

the

appeal.

A copv

of any such statemeni

or

brief,

includinq any staiements made on EEOC's

Appellant

Docketing

Statement, must

also

be sent to the

VA

Office of General Counsel

at the

above address.

if

ari

appeai is fiied wiiirihe

EEOC,

iire

appeai

airr-i

airy subsequeniiyfiied

siatei-rrei-ii or-

brief must contain a siatemeni certifying

the

date and meihod by which copies

of

these

documents were

senred on the

VA

Office of General Counsel.

Enclosure:

EEOC Forrn

573

ADR Election Form

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Breach of Settlement August 26, 2011

Documents