0120161512
04-11-2018
Angelique H.,1 Complainant, v. Dr. Mark T. Esper, Secretary, Department of the Army, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Angelique H.,1
Complainant,
v.
Dr. Mark T. Esper,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120161512
Agency Nos. ARMEPCOM12AUG03160 & ARMEPCOM13SEP03373
DECISION
On April 6, 2016, Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from a final Agency determination (FAD) dated March 22, 2016, finding that it complied with the terms of two settlement agreements into which the parties entered. See 29 C.F.R. � 1614.402; 29 C.F.R. � 1614.504(b); and 29 C.F.R. � 1614.405.
BACKGROUND
When Complainant notified the Agency that it breached her settlement agreements resolving her equal employment opportunity (EEO) pre-complaint ARMEPCOM12AUG03160 and EEO formal complaint ARMEPCOM13SEP03373, she was employed by the Agency as a Medical Program Manager, GS-0340-14 at Headquarters United States Military Entrance Processing Command (USMEPCOM), J-7 Medical Directorate, in North Chicago, Illinois.
On September 25, 2012 and December 11, 2014, Complainant and the Agency entered into a settlement agreements, resolving respectively, the above EEO cases. The settlement agreements provided, in pertinent part, that:
September 25, 2012, settlement agreement:
4.
b. for the duration of her assignment as the Medical Program Manager, GS-0340-14, position description #BG404829, J-7 Directorate/USMEPCOM, the Complainant will have the responsibility to perform her duties at the discretion of the Director, J-7/Medical Plans & Policy [Complainant's first line supervisor].
December 11, 2014, settlement agreement:
4.
b. for the duration of her assignment as the Medical Program Manager, GS-0340-14, position description #BG404829, J-7 Directorate/USMEPCOM, the Complainant will have the responsibility to perform her duties based on the priorities set by the discretion of the Director, J-7/Medical Plans & Policy.
c.
d. .... [The] Deputy Commander/Chief of Staff; Director, J-7/Medical Plans & Policy Directorate, the Complainant (Deputy Director, J-7/Medical Plans & Policy Directorate), Lieutenant Colonel... (Chief, Clinical Operations Directorate [actually Division]/Deputy Command Surgeon), and... Director, J-1/Human Resource) [will meet]. The purpose of the meeting is to clarify... there is only one Deputy Director within J-7/Medical Plans & Policy Directorate....
On March 2, 2016, the Agency issued "assignment instructions" for a Lieutenant Colonel to move from Hawaii to Headquarters USMEPCOM as the "Deputy Command Surgeon" - to serve as the Chief of the Clinical Operations Division, which is subordinate to Complainant, albeit she is not the rater for this position. The rater thereof is Complainant's first line supervisor, and the senior rater is the Commander, Headquarters USMEPCOM. Report of Investigation (ROI) Fact-Finding Conference transcript, at 29 - 30, 156.2
By correspondence to the Agency received in March 2016, Complainant alleged that the Agency breached the settlement agreements. Specifically, she alleged that the above assignment breached the settlement agreement term that she would serve as the sole Deputy to the Director, J-7 because some of her Deputy duties would be taken over by the successor Deputy Command Surgeon. She further alleged that her position description, which is referenced in the settlement agreements, is consistent with this. Complainant identifies the above as the first part of her breach claim. Second, Complainant contended that the current temporary (for a few months) USMEPCOM Commander moved two "worker" physicians from the Clinical Operations Division, which reduces her authority and responsibility, and he is influencing branch level hiring for positions under Complainant. She identifies this as the second part of her breach claim.3
For a time prior to July 2012, the Medical Plans & Policy Directorate (MEMD) and the Office of the Command Surgeon (MECS) were led at the top by two separate people in the J-7 organization. In July 2012, the Agency recreated the position of Director, J-7, Medical Plans & Policy and Command Surgeon, a dual-hatted role that led both MEMD and MECS. Generally, MEMD provides clinical direction, medical policy, and monitors for the USMEPCOM medical examination program. The Command Surgeon serves as the technical advisor and Medical Commander, and performs functions such as advising on medical and wellness requirements, determining medical mission, monitoring implementation of Army medical information programs, ensuring medical laboratory processing capabilities support missions, advising on clinical research missions, recommending special medical equipment requirements, and developing and coordinating operation plans. MEMD and MECS functions are performed by the Clinical Operations Division and the Clinical Quality Division, the two divisions subordinate to Complainant.
Complainant's position description referenced in both settlement agreements was classified in September 2012. It provides that she serves as the "Deputy Director, J-7 Medical Plans and Policy Directorate," and as a full Deputy, works under the J-7 Director, with full responsibility for "planning, managing and directing program segments of Medical Plans and Policy" and serves as the "alter ego" of the J-7 Director in the execution of the "Medical Directorate" functions throughout the command.
In response to Complainant's notice of breach, USMEPCOM wrote to the Agency's Equal Employment Opportunity Compliance and Complaints Review office that the responsibilities of the Deputy Command Surgeon do not remove any of Complainant's authority, the Deputy Command Surgeon is subordinate to Complainant, and the Agency is in the process of making her the first line rater for the Deputy Command Surgeon and amending the successor's assignment order to remove the title of "Deputy Command Surgeon."4
Regarding the first part of her breach claim, the Agency in its FAD, citing the above reasons, found it did not breach Complainant's settlement agreements because her duties have not changed. The Agency found that the second part of Complainant's breach claim constituted new allegations of discrimination, and advised Complainant to contact an EEO counselor if she wished to pursue them. The instant appeal followed.
Complainant argues that the first part of her breach claim would have been resolved to her satisfaction if the Agency made her the rater of the successor Medical Services Officer (Chief of the Clinical Operations Division). Complainant writes that while manpower documents have been changed to reflect that the successor is a "Medical Services Officer vice Deputy Command Surgeon," she still is not the rater thereof. On this part of her breach claim Complainant concedes that to her knowledge she has not lost "a lot of management authority," and identifies no specific duties and responsibilities that have been removed because of the successor Medical Services Officer. Complainant contests the Agency's finding that the second part of her breach claim should be characterized as new allegations of discrimination, albeit she notified the local EEO office that she will file a new complaint.
In opposition to appeal the Agency submits declarations by the Director, J-1 Human Resources, USMEPCOM; his Deputy Director, and the Chief, Civilian Personnel Division, USMEPCOM all stating that upon their information and belief Complainant's position description has not been changed since its last review on September 6, 2012, and her responsibilities and authority remain the same. The Agency reiterates findings made in the FAD, including that issue 2 constitutes new claims of discrimination. It argues that the settlement agreements do not grant Complainant a set number of employees.
ANALYSIS
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). 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 regarding 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).
On issue 1, Complainant identifies no specific duties that have been removed from her in relation to the successor Medical Services Officer. She concedes that manpower documents have been changed to reflect that the successor is a Medical Services Officer (i.e., not Deputy Command Surgeon). She argues that to her knowledge she has not lost a lot of management authority because her first line supervisor and the predecessor Medical Services Officer/Deputy Command Surgeon "formed a leadership team with" her, but she fears that by making the incoming Medical Services Officer believe he is Deputy Command Surgeon, he will feel misled about the organizational structure and this will lead to a hostile environment - meaning a competition for her duties and responsibilities. Appeal brief, at 11. Complainant further writes on appeal that the only thing she knows of that did not include her involving the predecessor Deputy Command Surgeon was him not assigning her to panel on physician pay, but concedes that she is not responsible for that area. Id., at 12.
Nothing in the settlement agreements nor Complainant's position description reference therein specifically indicate that Complainant must be the rater for the Medical Services Officer.5 We find this significant because when the parties signed the second settlement agreement in December 2014, the predecessor Medical Services Officer/Deputy Command Surgeon was in his position and identified by name and title, and Complainant was not his rater then. Complainant did not allege breach until March 2016, within days after the assignment instructions were made to the successor "Deputy Command Surgeon," which was later renamed/recharacterized as Medical Services Officer. While Complainant fears that her duties and responsibilities will be diminished because of the successor, until she can identify the loss of duties and responsibilities lost that violate the settlement agreements she will not show breach, regardless of the circumstances of the successor coming on board and his presence.
We agree with the Agency on issue 2 that the settlement agreements do not require that Complainant have a set number of subordinates. Nor does Complainant's position description. The most recent organizational J-7 chart in the record, from September 2013, indicates that not counting her two Division Directors, Complainant had at least 23 active subordinates, including multiple front line supervisors. This is two more subordinates than she had a year earlier, just before and after the first settlement agreement. On appeal, Complainant writes that a couple of years ago she got approved for a temporary nurse practitioner position and recently got approved for another physician position. While there is an ebb and flow in the number of Complainant's subordinates, this does not violate the settlement agreements. We understand that this may be a matter of degree - if one of her subordinate Divisions was moved elsewhere this could arguably constitute a breach (we don't decide that here), but what has occurred here does not even closely rise to that level. We also find that Complainant's first line supervisor allegedly exercising input or influence on who is hired under Complainant does not breach the settlement agreements. This is not at all unusual in organizations, and nothing in the settlement agreements explicitly prohibits this.
On appeal, Complainant expresses great concern with USMEPCOM's response to her notice of breach that the literal language in the settlements that "Complainant will have the responsibility to perform her duties at the discretion of the Director, J-7/Medical Plans & Policy" clearly means that the Director has the discretion to "alter the duties of the Complainant." Complainant strongly disagrees - she argues this only means he can set the workload priorities. We need not address Complainant's concern about USMEPCOM's interpretation of the language in the settlement agreements because the Agency has not breached the settlement agreements.
The FAD is AFFIRMED.
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).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0610)
You have the right to file a civil action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. 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. If you file a request to reconsider and also file a civil action, 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
April 11, 2018
__________________
Date
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.
2 In this decision, we refer to the Chief of the Clinical Operations Division/Deputy Command Surgeon, who was serving therein when the assignment instructions were made as the "predecessor," and the incoming Chief as the "successor." It is not clear from the record, including the parties appeal submissions, whether the "predecessor" Chief ever left his role and the "successor" Chief ever took over.
3 The record does not contain a copy of Complainant's notice of breach. Nevertheless, we will still adjudicate Complainant's claim now because on appeal she explains with much detail how the settlement agreements were allegedly breached.
4 With its response, USMEPCOM included a memorandum dated July 7, 2015, by Complainant's first line supervisor to the J-1/Human Resources Directorate asking that Complainant to become the first line rater for the Chief of the Clinical Operations Division. This was while the predecessor Chief of the Clinical Operations Division/Deputy Command Surgeon referenced by name in the December 11, 2014, settlement agreement was still in this position.
5 In opposition to the appeal, the Agency writes that the reason the rater of the Chief, Clinical Operations Division/Medical Services Officer has been Complainant's first line supervisor, and the Senior Rater the Agency Commander is to benefit of the Chief's possible career progression - since he is military, it is viewed as more beneficial to the Service Member to have two military officers rate the position. We make no assessment on whether this is accurate.
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