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Office ofFederal Operations
P.O. Box 77960
Washuigton, DC 20013
Aurore C,*

Robert McDonald,
Department ofVeterans Affairs
(Veterans Healtfa Administration),
Appeal No. 0120150961
Agency Nos. 200P-0663-2012101407; 200P-0663-2011102139; 200P-0663-2013100371
EEOC Hearing NOS.551-2012-00005X; 551-2013-00017X
CComplainant tfanely apjiealed to tfae Cominission firom ffle Agency's Dewmber 12, 2014
dwision, fflsmissing Complainant's breacfa aUegation. We acwpt tfae apjieal under tfae
aufliorities set fortfa at 29 C F R . 1614.402 and 29 C.F.R. 1614.405.

At tfae time of events giving rise to faer complaints. Complainant woiked as a Nurse at the
Agency's VA Puget Sound Health Care System facfflfy ui Seaffle, Wasfaington.
On Januaty 7,2013, Complainant and tfae Agency enteied into a sefflement agrwment to resolve
tfae above-referenced EEO matters. Tfae sefflement agreement jirovided in jiertinent jiart tfaat
Complainant agreed to:

Waive and (Canwl Furtfaer Proceedings: To waive and give up aU rigfats to

administrative processing ofany and aU wmplaints and employment clainis...tfaat
wuldfaavebwn raised prior to ffle date oftfais Agrwment or tfaat migfat be raised
after ffle date oftfais Agrwment, including but not limited to, a waiver of: (a) tfae

' Tfais case faas liwn randomly assigned a pseudonym wfaicfa wffl replaw Complainant's name
when tfae dwision is pubUsfaed to non-jiarties and tfae Commission's website.


right to pursue any EEO eximplaints via the VA's Offie:e of Resolution
Management (ORM) or the Equal Employment Opjiortunity Commission... and
0) all otfaer civil or administrative processfaig ofany issues in viiatever forum;

Future Employment at Agency (VISN 20): Complainant sfaaU notfaereafterqiply

for, or accept any jiosition viietfaer fiffl time or jiart time witfa the United States
Dejiartment of Veterans Affafars (VA), viiich includes tfae states of Wasfaington,
Idaho, Alaska, and Oregon;


Resignation: To voluntarily resign;


[Botfa Jiarties agrw] tfae Agency wiU enter Complainant's voluntaty resignation
on VA Sttmdard Form 52;


Payment: To jiay tfae total lump sum of one faundred twenty six thousand one
hundred and ninety thrw doUars and no wnts. ($128,193.00) later than
ninety (90) days fiom the date ofthis agrwment;


Woric Referenw: For two (2) years fiom the date of this agrwment the Human
Resources Offiw, or that jierson's sjiwffic designw, wffl be resjxinsible for
providing to prosjiwtive employers a woric referenw regarding Complainant
stating only tfae dates of employment job titie, and ff asked tfaat it is tfae jioUcy of
tfae VA Human Resources Management to give only tfais infoimation, and tfaat
Complainant's employment at Agency ended due to resignation. The jiaities
sjiecnficaUy acknowledge and agree that Complainant is solely responsible for
directing wmmunications fiom any jiotential fiiture employer to ffle Human
Resources Offiw, or tfaat jieison's sjiwffic designw, in tfae manner described
faerein... and tfaat Complainant wffl not faold VA Uable or in breacfa of this
Agrwment for resjionses to communications not so dirwted by her. In adffltion,
tfae Agency wffl jirovide a letter to (Complainant dated Dee:ember 18, 2012, signed
by [named official], a copy ofwfaicfa is attacfaed as Exfaibit B;


Entire Agreement: This Agrwment is ffle entire Agrwment betwwn ffle jiarties
andfflereare no other items to this Agrwment exceptfflosethat it sjiwffies;


Neiffler Complainant nor ffle Agency wffl fflsclose tfais
Sefflement Agreement or its teims, wiffl tfae foUowing exceptions: (1) to
autfaorized VA, EEO, ORM, EEOC. or otfaer officials resjxinsible for
implementing ffle Agreement....It should be understood tfaat Complainant
shaU be prolubited from making any complaints or negative comments to
any member of Congress or their staff, or any newspapers or media or their
staff, or any otfaer pubUc foiums, about ffle fects oftfais Sefflement Agrwment or
tfae facts or concUtions tfaat led up to tfais Sefflement Agrwment (Empfaasis
added); and



CompUanw: Tfais Agrwment sfaaU be made a jiart of ffle record of tfae

Complainant's above referenced fflscrimination wmplaint and remains
enforceable under tfae jurisfflction of tfae EEO foUoAving fflsmissal of tfais case.
The Agency agrees that in the event that its agents and employees faU to wmply
with any ofthe teims set forth faerein for any reason not attributable to action or
inaction by the- Complainant, it wffl reojien tfae EEO complaint...for furtfaer
processing.. .provided tfaat tfae Complainant must first bring any sucfa aUegation of
breacfa oftfae Agrwment to tfae attention oftfae Depufy Assistant Swretaty for tfae
Offiw of Resolution Management...witfain tfairty (30) calendar days of faer
fflswvcty of sucfa bieacfa.

Tfae Agrwment was signed on Januaty 7, 2013. A year later. Complainant appUed for ffle
jxisition of Nurse Practitioner (Wound /Ostomy) at the VA in Loma Linda, Caltfornia. On
Februaty 18,2014, ffle VA at Loma Linda extended Complainant an offer, viiich she accepted
She was given a start date in April.^
The rewrd also sfaows tfaat ffle Seaffle VA Human Resources Offiwr and tfae Director of
Nursing, Surgical Serviw acknowledged contact witfa tfae Calffomia VA, stating tfaey "were
aware ofan inquity firom a VA in Claltfomia in March of 2014." The Seaffle Dirwtor faxed the
Loma Linda officer a wpy oftfae agreed-ujion referenw letter. Sfae told ffle requester tfaat "any
adffltional infoimation was avaUable fiom HR" and gave tfae requestor the number.
On or about March 20, 2014, Loma Linda rescinded its offer to Complainant Tfae Agency
refiised to give Complainant reasons for tfae witfadrawal. Wfaen Complainant caUed to inquire as
to viiy ffle offer to faer was rescfaided, tfae Hiunan Resources Representative (HR) stated fflat it
was due to sometfaing faer foimer sujiervisor at ffle Seaffle VA faad said Complainant was not
aUowed to contact tfae individual at Loma Linda to get verffication of wfaat she was told
At tfae end of May of 2014, Complainant was informed by another individual tfaat the otfaer

infflvidual (informant) saw "a communication that cleariy violated tfae wnfidentiaUty provisions
of ffle Agreement"
By letter to tfae Agency rweived on June 24, 2014, Complainant infonned the Agency tfaat she
beUeved ffle Agency was in breach oftfae sefflement agreement and requested tfaat ffle Agency
implement its terms. SjiwfficaUy, Complainant aUeged tfaat ffle Agency faUed to honor tfae
ConfidentiaUfy provisions and gave negative feedback to tfae prosjiwtive new employing offiw.
The Agrwment sjiwffied that ffle restricted area was ffle VISN 20, wfaicfa ffld not referenw tfae
State of CaUfomia as one of ffle states to viiicfa Complainant could not qipfy for employment
Complainant stated tfaat sfae observed "a related jiattem of activify commimicating wiffl VA
HR in Montana and Tennessw." Complainant also stated her beUef tfaat "tfae jmttera is

^ Sfae states tfaat sfae incurred more tfaan $4,000 in relocation exjienses, based on tfae approval and
assurance offfleVA,


suspicious," and tfaat "after tfae final contact with Seaffle was made, [led her] to conclude that
there is retaUation involved."
In its Dwember 2014 final dwision, tfae Agency fflsmissed tfae breacfa claim, as untimely ffled
witfaout a finding as to wfaetfaer it was in wmpUanw witfa tfae terms oftfae sefflement agrwment
Tfae Agency stated tfaat it rewived tfae claim on July 24,2014. Tfae Agency appUed tfae doctrine
of lacfaes to fflsmiss ffle breacfa claim. The Agency reasoned tfaat Complainant "knew or sfaould
faave reasonably susjiected" the violation on March 21,2014.
This apjieal followed. On appeal. Complainant argues that ffle Agency erred in claiming tfaat tfae
breach aUegation vras untimely. Complainant maintains that she ffld not know of ffle contract
violation, and could not reasonably faave known of it, unffl being informed of it In addition.
Complainant asserts tfaat "VA cannot clafan tfaat tfaere was an 'unreasonable delay' vhen ft was
its own refiisal to infonn Plaintiff of ffle reason for rescfaiding tfae job offer tfaat causedfaernot to
know of ffle breacfa." Sfae also asserts tfaat tfae Agency sfaould be barred by tfae doctrine of
unclean faands of asserting a lacfaes defense, because it refiised to Uft 'tfae gag order," baning
Complainant fiom fflscussing ffle factual imdeipinnings oftfais matter.
EEOC Regulation 29 C.F.IL 1614.504(a) provides tfaat any sefflement agrwment knovringly
and voluntarily agreed to by tfae paities, reacfaed at any stage oftfae complaint process, sfaaU be
binding on botfa jiarties. The Commission has held tfaat a sefflement agrwment wnstitutes a
conttact between tfae employw and ffle Agency, to ^^cfa oidinaty rules of contract constmction
apply. Sw Herrington v. Dep't of Def.. EEOC Request No. 05960032 (Dewmber 9,1996). Tfae
Commissionfaasfiirtfaerfaeldtfaat it is tfae intent of ffle parties as expressed in ffle contract not
some unexpressed intention, tfaat controls tfae wntiact's constmction. Eggleston v. Dep't of
Veterans Affairs. EEOC Request No. 05900795 (August 23,1990). In aswrtafaung flie faitent of
ffle Jiarties with regard to ffle terms of a sefflement agrwment, flie (Commission has generaUy
reUed on the plaui meaning rule. Sro Hyon O v. U.S. Postal Serv.. EEOC Request No. 05910787
(December 2,1991). This rule states that tf tfae writing qijieais to be plafai and unambiguous on
its faw, its meaning must be detemuned from tfae four wmers of ffle instnunent wifflout resort to
extrinsic evidenw of any nature. See Montgomerv Elevator Co. v. Buflding Eng'g Servs. Co..
730 F.2d 377 (5ffl Cir. 1984).
We find tfaatffleAgrwment was knowingly and voluntaffly entered
Initially, we note tfaat two provisions of ffle agrwment rely on a prosjiective waiver ofrigfatsand
are unenforceable. First we note tfaat jiaragrapfa 1.2 of ffle Agrwment required Complainant to
waive fiiture and unknown fflsputes in any forum.^ It is axiomatic tfaat jiaities can only resolve

^ Tfae Agreement sfeted at jiaragraph 1.2 that Complafaiant was agrwuig to waive any claims
'tfaat wuld faave bwn raised prior to ffle date oftfais Agrwment or that might be raised after the
date ofthis Agreement [empfaasis added]...".


actual existing fflsputes. Sec Complainant v. Department of the Army. EECXC Apjieal
0120133395 (Aprfl 1, 2015) ("We flunk ft clear fliat fliere can be no prospwtive waiver of an
employw's rights under Titie VB."). To ffle extent that ffle Agrwment piujxirts to reqiure
Complainant to waive "and give up aU rights to administrative processing ofany complaints and
employment clauns...tfaat migfat be raised after tfae date of tfais Agreement" we find tfaat
language is against pubUc jioUcy and faivaUd.
Second ffle Agreement, at jiaragrapfa 3.5, expressly "profaibits [Complainant] fiom making any
(Ximplaints or negative comments to any member of CCongress or tfaeir staff, or any newspajiers or
meffla or their staff." We view tfais provision as an unlawful, overly restrictive wnfidentialify
limitation, because it expressly deprives Complainant of faer abfflfy to contact CCongress and
otfaerwise limits faer First Amendment Rights to commimicate with ffle meffla about any of faer
EEO claims.
However, ratfaer tfaan invaUdate ffle entire agrwment vriiicfa would undermine tfae intent of the
Jiaities, we wffl construe the Agreement in a way that aUows the remaining provisions to stand
Wiffl fflese two exceptions, viiich we beUeve are severable, we find that ffle Agrwment is
offlerwise vaUd and bincUng.
On apjieal. Complainant argues that ffle Agency caused faer to incur damages as a result of
rescinding its offer and has engaged in subsequent acts of denying her employment outside oftfae
VISN 20.
The Agency argues tfaat Complainant's apjieal sfaould be denied because Complainant's breacfa
notiw was not timely subnutted.
We find tfaat ffle Agency ffld not provide evidenw to supjxirt its conclusion tfaat (Complainant's
breach claim was untimefy. We also find that tfae Agency mayfaaveexintributed to tfae delay by
its refusal to jmivide (Complainant with the reasons for tfae rescission oftfae Loma linda offer.
Tfaerefore, we do not find tfaat Complainant's breacfa claim sfaould be elismissed as untimely
We note tfaat VA does not deny tfaat a breach (xxuired We find tfaat ffle rewrd before us
supjxirts ffle breacfa claim. The Agrwment limited ffle information tfaat was to be revealed After
wntact witfa Complainant's foimer sujiervisor at Seaffle, tfae Loma Linda VA resdnded its offer
to Complainant
It is clear tfaat by entry of a voluntaty resignation, (Complainant ffld not intend to imjxise ujxin
herself a nationvride bar to fiiture employment There is nothing in the Agrwment that would
require Complainant to forego employment in areas outside of ffle VISN 20, sinw the terms of


ffle Agreement explicitiy list tfae states (witfain VISN 20) ^ e r e Complainant would not swk reemployment and ffld not expressly mention any otfaer area.
We find tfaat tfae Agency faas not shown that, in limitfaig future employment to wrtain states, it
was simultanwusly restricting employment beyond tfae VISN 20. ff ffle Agency intended to
fflsallow or limit sdl fiiture employment beyond VISN 20, a nationwide limitation should have
bwn sjiecffied in the Agrwment,ratfaerthan tfae expressed referenw to sjiwify VISN 20.
For fflese reasons, we do not find tfaat tfae Agency faas sfaown tfaat it was in wmpUanw witfa ffle
terms of ffle Agrwment
Wfaen we find a breach, we have two choiws: sjiwffic jierformanw or refaistatement of tfae
underlying complaints, ff Complainant cfaoses to reinstate faer complaint she would have to
retura any monetaty reUef wfaich she has obtained and the voluntaty resignation would have to
be rescinded, ff she cfaooses sjiwffic jierformanw, we require tfaat tfae jiaities be faeld to tfae
teims of ffle Agreement. Therefore, we order that Complainant be provided the option of
sjiwffic Jierformanw of tfae enforceable provisions, wifflout tfae prosjiwtive waiveis and
restrictions on Congressional contact or reinstatement offaer complaint
Findly, to ffle extent tfaat Complainant may be raising new clainis of retaUation, sfae is advised to
contact tfae EEO Counselor to raise faer claims, lie[:aiise ffley are viewed as subsequent new
actions, unrelated to tfais bieacfa claim.
Accordingly, we REVERSE tfae Agency's Deteimination and REMAND tfae matter to tfae
Agency for action consistent witfa tfae Order below.
Tfae Agency is ordered to take the foUowing remeffld action:
1. Witfain tfairty (30) calendar days of ffle date tfais dwision becomes final, ffle Agency is
ordered to notify Complainant offaer option to eitfaer retura to tfae status quo jirior to flie
signing of ffle sefflement agreement or to obtain sjiwffic jierformanw of ffle agrwment
Tfae Agency sliaU also notify (Complainant tfaat sfae faas fiftwn (15) calendar days firom
tfae date offaer rewipt of ffle Agency's notiw witfain wfaicfa to notify tfae Agency eiffler
tfaat sfae wisfaes to retura to tfae status quo jirior to ffle signing oftfae agreement or tfaat sfae
wisfaes to aUow tfae terms of ffle agrwment to stand (Complainant sfaall be notffied tfaat in
order to retura to tfae status quo ante, sfae must retura any monetaty benefits rewived
pursuant to tfae agrwment Tfae Agency sliaU detennine its obUgations due to
Complainant, and retura of wnsideration or benefits due fiom Complainant, witfain tfaiity
(30) calendar days of the date this dwision bewmes final, and sfaall include sucfa
fatfoimation in tfae notiw to Complafaiant


2. Witfafai sixty (60) calendar days of ffle date tfais dwision becomes final, ffle Agency is
ordered to comjiensate Complainant to any proven pecuniary losses sfae incuned by tfae
rescission of ffle Loma Linda offer.
3. ff Complainant elwts sjiwffic jierformanw, tfae Agency sfaaU notify Complainant tfaat tfae
terms of ffle sefflement agrwment sfaall stand and ffle Agency vriU abide by all of tfae
ternis of ffle Agrwment inclucUng the non-disclosure provisions, but wifflout tfae
prosjiwtive waiver of rigfats and prosjiective profaibition on communications wiffl
Congress,fflemeffla and ffle EEOC.
4. If Complainant elwts to reinstate faer EEO complaint, ffle Agency sfaaU resume
prcxressing tfae EEO complaint fiom ffle jioint processing ceased Tfae Agency is oidered
to process tfae remanded claims in acwidanw wiffl 29 C.F.R. 1614.108 et seq. Tfae
Agency sfaaU acknowledge to tfae Complainant tfaat it faas rewived tfae remanded claims
within thirfy (30) calendar days of the date this dwision becximes final. The Agency
shaU issue to Complainant a wpy of tfae faivestigative ffle and also sfaall notify
Complafaiant of ffle appropriaterigfatswithin one hundred fiffy (150) calendar days of
ffle date this dwision bewmes final, unless the matter is otfaerwise resolved prior to tfaat
time, ff ffle Complainant requests a final dwision witfaout a faearing, ffle Agency shaU
issue a final dwision within sixfy (60) days of rewipt of Complainant's request
The Agency is fiirtfaer dirwted to submit a report of compUanw, as provided in ffle statement
entitied "Implementation of ffle Commission's Dwision." Tfae rejiort sfaaU include supjiorting
dcicumentation verifying tfaat tfae wirwtive action faas bwn implemented A copy of tfae
Agency's letter of acknowledgment to Complainant and a copy of tfae notice tfaat transmits tfae
investigative ffle and notiw of rigfats must be sent to tfae CompUanw Offiwr as referenced
A copy of ffle Agency's letter of acknowledgment to Complainant and a copy oftfae notiw tfaat
transmits ffle investigative ffle and notiw of rigfats miist be sent to ffle CompUanw Officer as
referenced below.
ff Complainant faas bwn represented by an attoraey (as defined by 29 C.F.R.
1614.501(eXl)(ffl)),fae/sfaeis entitied to an award of reasonable attomey's fees incuned in tfae
prowssing oftfae wmplaint 29 C J.R. 1614.501(e). Tfae award of attorae/s fees sfaaU be jiaid
by tfae Agency. Tfae attoraey sfaall subnut a verffied statement offices to ffle Agency not to tfae
Equal Employment Opjiortunify Conunission, Offiw ofFederal Ojierations within thirty (30)
calendar days of tfais decision bewming final. The Agency shaU fflen process ffle claim for
attoraey's fees in acwrdanw wiffl 29 CF.R. 1614.501.
Complianw with ffle Commission's wnective action is mandatoty. The Agency shall subinit its
compUanw rejiort within thirty (30) calendar days ofthe completion ofall ordered conwtive


action. The rejxirt shaU be subimtted to tfae (CompUanw Offiwr, Offiw of Federal Ojierations,
Equal Employment Opjiortunity Commission, P.O. Box 77960, Washfaigton, DC 20013. The
Agency's rejiort must wntain supjiorting dcxrumentation, and ffle Agency must send a copy of aU
submissions to the Complainant ff the Agency does not wmply vnth the Commission's order,
ffle Complainant may jietition tfae Commission for enforwment of ffle order. 29 C.F.R.
1614.503(a). The (Complainant also has the rigfat to ffle a dvU action to enforce wmpUanw
with tfae Commission's order prioi to or foUowing an administrative jietition for enforwment
Sw 29 C F R . 1614.407, 1614.408, and 29 CFJL 1614.503(g). Altematively, die
Complainant faas ffle right to ffle a dvU action on the underlying complaint in acexirdanw with
ffle paragraph below entitied "Right to FUe a CivU Action." 29 CJ.R. 1614.407 and
1614.408. A dvU action for enforcement or a civfl action on tfae underlying wmplaint is subjwt
to flie deadUne stated fai 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complauiant
files a civfl action, the administrative processing ofthe complaint, including any petition for
enforcement, wiU be terminated. Sw 29 CF.R. 1614.409.
The Cominission may, in its fflscretion, reconsider the dwision in this erase tf the Complainant or
ffle Agency submits a written request wntaining arguments or evidence wfaich tend to establish

The apjieUate dwision involved a clearly erroneous interpretation of material fact

or law; or
The apjieUate dwision wffl faave a substantial impact on tfae jioUdes, practices, or
ojierations oftfae Agency.

Requests to rewnsider, vritfa supjiorting sfetement or brief, must be ffled with the Offiw of
Federal Ojierations (OFO) within thirty' (30) calendar days of rewipt ofthis dwision or vithin
twenty' (20) calendar days of recreipt of anotfaer paity's timefy request for reconsideration. See
29 C.F.R. 1614.405; Equal Emplovment Opporhmitv Management Directive for 29 C.F.R. Part
1614 (EEO MD-110), Chap. 9 Vn.B (Aug. 5, 2015). AU requests and arguments must be
submitted to ffle Director, Offiw of Federal Ojierations, Equal Employment Opjxntunity
Commission, P.O. Box 77960, Wasfaington, DC 20013. In ffle absenw ofa legible jxistmaric, tfae
request to rewnsider shaU be dwmed timely ffled tf it is rewived by mail witiun five days oftfae
expiration oftfae qipUcable filing jieriod See 29 CFJL 1614.604. The recjuest or opjiosition
must also include proof of serriw on the otfaer party.
Failure to ffle witfain ffle time jiericxl wffl result in fflsmissal ofyour recjuest for reconsideration
as untimely, unless extenuating circumstances prevented ffle timely filing of ffle request Any
supjiorting documentation must be submitted witfa your request for reconsideration. The
Commission wffl consider requests for rewnsideration ffled after ffle deacUine only in vcty
Ifanited cfacumstances. See 29 C.F.IL 1614.604(c).



Tfais is a dwision requiring tfae Agency to wntinue its administrative processfaig of yom
complaint However, ifyou wisfa to ffle a avU action, youfaavetfae rigfat to file sucfa action in an
appropriate United States District (Court withui ninety (90) calendar daysfiromthe date that you
rewive this dwision. In ffle altemative, you may ffle a civfl action after one hundred and
eighty (180) calendar days ofthe date you ffled your complaint wiffl ffle Agency, or ffled your
apjieal wiffl the (Commission, ff you ffle a civfl action, you must name as tfae defendant in tfae
wmplaint the person wfao is the official Agency head oi department head, identiiying that jieison
by his or her ffaU name and official tifle. Failure to do so may result in the fflsnussal ofyour case
in court "Agency" or "dejiartment" means the national oiganization, and not the local office,
facility or dejiartment in viiich you woric Filing a civU action wiU tenninate the
administrative processing ofyour complaint
ff you want to ffle a dvU action but cannot pay ffle fees, costs, or swurity to do so, you may
request jieimission fiom the court to proceed wiffl tfae dvU action witfaout jiaying tfaese fees or
wsts. Sinfflarly, tf you cannot afford an attoraey to represent you in tfae civfl action, you may
request ffle wurt to apjioint an attoraey for you. You must submit the requests for waiver of
court costs or appointment of an attoraey directfy to the court, not the Commission. The
wurt has ffle sole fflscretion to grant or deny these fyjies of recjuests. Such requests do not alter
ffle time limits for filing a civfl action (please read flie paragraph titied Complainant's Right to
Ffle a Civfl Action for the sjiwffic time limits).

Carlton M. Hadden, Direcrtor

Officre ofFederal Ojierations

APR 1 k 2016