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
8/9/2019 Breach of Settlement August 26, 2011
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
8/9/2019 Breach of Settlement August 26, 2011
3/7
Page
3
Mr. Oliver
B.
iVitchell lll
instrument
withoui
resort to exirinsic
(e;
8/9/2019 Breach of Settlement August 26, 2011
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.
8/9/2019 Breach of Settlement August 26, 2011
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
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
8/9/2019 Breach of Settlement August 26, 2011
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
settlement agreement
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
settlement agreement
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
8/9/2019 Breach of Settlement August 26, 2011
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