Aileen C.,1 Complainant,v.Sonny Perdue, Secretary, Department of Agriculture, Agency.

Equal Employment Opportunity Commission

Nov 7, 2018

0120182484 (E.E.O.C. Nov. 7, 2018)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Aileen C.,1
Complainant,

v.

Sonny Perdue,
Secretary,
Department of Agriculture,
Agency.

Appeal No. 0120182484

Agency No. USDA-CCD-CF-2018-00569

DECISION

Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC
or Commission) from an Agency decision, dated June 12, 2018, regarding a formal complaint of
unlawful employment discrimination in violation of Title VII of the Civil Rights Act of 1964
(Title VII), as amended, 42 U.S.C. § 2000e et seq. The Commission accepts the appeal in
accordance with 29 C.F.R. § 1614.405.

BACKGROUND

During the relevant time, Complainant worked as a Senior Program Analyst, GS-14, for the
Agency’s Internal Controls Division, of the Office of Chief Financial Officer in Washington,
D.C.

Believing that the Agency subjected her to unlawful discriminatory harassment based on her
prior protected EEO activity, Complainant filed a formal complaint on May 30, 2018. Her claim
of a hostile work environment was comprised of the following events:

(1) On March 9, 2018, Complainant was threatened with a proposed removal and
sent a settlement agreement withdrawing her complaint in Case No. USDA-
CCD-CF-2018-00085;

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.
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(2) On April 4, 2018, Complainant was issued a Proposed Removal Notice –
Unacceptable Performance;

(3) On April 10, 2018, Complainant felt coerced into signing the settlement
agreement for Case No. USDA-CCD-CF-2018-0085 and shortly thereafter,
she was demoted from a GS-15 to a GS-14 position; and,

(4) Regarding Case No. USDA-CCD-CF-2018-0085, Complainant does not feel
management followed Departmental Manual DM-4300-1 or Department
Regulation DR-4300-007.

On June 12, 2018, the Agency issued the instant final decision. The Agency dismissed
the formal complaint on the grounds that it alleged dissatisfaction with the processing of
a prior complaint. The Agency reasoned that the claims specifically related to the
processing of Case No. USDA-CCD-CF-2018-0085 (hereinafter “Case No. 0085”). The
Agency noted that Case No. 0085 was resolved by an April 10, 2018 settlement
agreement, which resolved a proposed removal by requiring Complainant to voluntarily
downgrade to the Senior Program Analyst, GS-14 position.2 The Agency concluded that
the instant complaint was an improper “spin-off” complaint of Case No. 0085, and
dismissed the matter for failure to state a claim.

Complainant filed the instant appeal. On appeal, Complainant, through her attorney,
argues that she was coerced into signing the April 10, 2018 agreement and therefore that
settlement agreement should be voided.

Alternatively, Complainant contends that she revoked the agreement on April 17, 2018,
within the seven-day revocation period provided for in provision (B)(5) of the settlement
agreement. On April 17, 2018, Complainant explains she initiated contact with the EEO
Counselor “to complain about the Agency’s retaliation after she filed an EEO complaint
and to reopen her existing complaint, which should have moved forward after she
revoked the settlement agreement.”

ANALYSIS

Validity of Settlement Agreement

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 (December 9, 1996).

2 Before the demotion, Complainant was a Supervisory Program Analyst, GS-15, in the Office of
the Assistant Secretary for Civil Rights.
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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 (August 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. U.S. Postal Serv., EEOC Request No. 05910787
(December 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).

In the instant case, on April 10, 2018, the parties entered into a settlement agreement to resolve
Case No. 0085. The settlement agreement provided, in pertinent part, that:

A. In consideration of Complainant’s consent to the terms of this Agreement, the
Agency agrees to:

(1) In lieu of proposing the removal of Complainant from her position
. . . for unacceptable performance due to the failure of her performance
improvement plan dated October 30, 2017, as a Supervisory Program
Specialist, GS-15-0301. . . the Agency will reassign Complainant to the
position of Senior Program Analyst, GS-14 . . .

B. In return for the above valuable consideration, Complainant agrees:

(1) To withdraw, with prejudice, all pending, formal and informal,
amendments, claims, grievance, appeals, civil actions of complaints
which have been filed . . .regarding Complainant’s employment with
the Agency;

(5) That she is aware of the right to representation by an attorney and is
encouraged to have her representative review this Agreement. Complainant
will have twenty-one (21) days after receipt of this Agreement to consider its
terms. Should Complainant sign this Agreement before the 21-day time period
has expired, Complainant attests that her decision to accept such a shortening
of this period is knowing and voluntary, and was not induced by the Agency
through fraud, misrepresentation, and/or threat to withdraw or alter the terms
of this Agreement. Complainant has seven (7) days from the effective date of
the Settlement Agreement to revoke the Agreement

. . .

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As an initial matter, we consider Complainant’s assertion that she was “coerced” into signing the
agreement, when the Agency threatened to remove her unless she did so. Rather, we find no
coercion, but instead consideration. Specifically, in exchange for maintaining her employment
with the Agency, albeit in a lower-graded position, Complainant was to withdraw her underlying
complaint. Consequently, we decline to invalidate the agreement on such grounds.

As noted above, however, Complainant’s attorney also argues that when Complainant contacted
the EEO office on April 17, 2018, she did so to exercise her option to revoke the agreement, as
provided in provision (B)(5). A review of the EEO Counselor’s Report reflects Complainant
made contact on April 17, 2018, within seven days of the execution of the settlement. However,
while Complainant raised concerns with conflict of interest, her prior placement on a PIP, and
notice of proposed removal, she did not expressly state her desire to revoke the settlement.
Nonetheless, we find that a fair reading of her claims of coercion, made seven days after the
agreement was entered, and reiteration of the underlying claims indicate her intention to revoke
the April 10, 2018 settlement agreement.

Therefore, we find that Complainant’s revocation was effective, and the underlying EEO
complaint (Case No. 0085) is reinstated from the point processing ceased.3 Complainant and the
Agency must return to the status quo at the time the parties entered into the agreement, which
would require that Complainant return any benefits received pursuant to the agreement,
including the removal of the Notice of Proposed Removal and reassignment to the Senior
Program Analyst position. See e.g. Armour v. Department of Defense, EEOC Appeal No.
01965593 (June 24, 1997).

Dismissal of “Spin-Off” Claims

Finally, we turn to the instant complaint. EEOC Regulation 29 C.F.R. § 1614.107(a)(8) provides
that an agency shall dismiss a complaint that alleges dissatisfaction with the processing of a
previously filed complaint. Chapter Five of the EEOC Management Directive 110 (MD-110)
(Aug. 5, 2015) defines such a complaint as a “spin off complaint. MD-110 indicates further that
“spin-off” complaints should be referred to the agency official responsible for complaint
processing and/or processed as part of the original complaint. See id.; see also Complainant v.
Department of Health and Human Services, EEOC Appeal No. 05910159 (February 11, 1991).

In claims (1), (3) and (4), Complainant explicitly states events concerning her earlier complaint
(Case No. 0085).

3 In Case No. 0085, Complainant alleged she was subjected to discrimination based on her race
and national origin regarding assignments, performance evaluations, annual leave requests,
training, and the denial of a reasonable accommodation. A review of Commission records reveal
that on February 21, 2018, the Agency dismissed Case No. 0085 on the grounds that it was
untimely filed. Complainant appealed the dismissal. Upon receipt of the settlement agreement
by the Agency, the Commission administratively closed EEOC Appeal No. 0120181491 on
August 24, 2018.
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The Commission agrees with the Agency that Complainant is attempting to raise “spin-off”
complaint. Instead, she should have raised such concerns with the Agency official responsible
for complaint processing as part of Case No. 0085.

Dismissal of Proposed Action

As for claim (2), the issuance of a Proposed Removal, we find that the matter was properly
dismissed. Under EEOC Regulation 29 C.F.R. § 1614.107(a)(5) the agency shall dismiss a
complaint that alleges that a proposal to take a personnel action, or other preliminary step to
taking a personnel action, is discriminatory

CONCLUSION

The Agency’s determination that the April 10, 2018 settlement agreement was not revoked was
improper. Its dismissal of the complaint (Case No. USDA-CCD-CF-2018-00569) was proper.
The Commission hereby MODIFIES the Agency’s decision and REMANDS a portion of the
matter in accordance with the Order below.

ORDER

Within thirty (30) calendar days of the date this decision becomes final that Agency shall:

(1) Notify Complainant of her obligation to return to the status quo (i.e. return to her prior
position and the reinstatement of the Notice of Proposed Removal from that position).

(2) Take the necessary administrative actions to enact the return to status quo.

(3) Either issue a letter accepting the claims in Case No. CCD-CF-2018-00085 for
investigation, or, issue a new decision dismissing the complaint with appeal rights to the
Commission.

IMPLEMENTATION OF THE COMMISSION’S DECISION (K0617)
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 in the digital format required by the Commission, and submitted via
the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). 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).
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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.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
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. A party
shall have twenty (20) calendar days of receipt of another party’s timely request for
reconsideration in which to submit a brief or statement in opposition. 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.
Complainant’s request 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
agency’s request must be submitted in digital format via the EEOC’s Federal Sector EEO Portal
(FedSEP). See 29 C.F.R. § 1614.403(g). 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).

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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

November 7, 2018
Date