0120160859
05-10-2016
Breanne H.,1 Complainant, v. Penny Pritzker, Secretary, Department of Commerce (Patent and Trademark Office), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Breanne H.,1
Complainant,
v.
Penny Pritzker,
Secretary,
Department of Commerce
(Patent and Trademark Office),
Agency.
Appeal No. 0120160859
Agency No. 135618
DECISION
Complainant filed a timely appeal with this Commission from the Agency's November 20, 2015 final decision (FAD), finding that it was in compliance with the terms of the settlement agreement 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. We accept the appeal.
BACKGROUND
At the time of events giving rise to her complaint, Complainant worked as an Employee Relations Specialist at the Agency's Employee Relations Division, Office of Human Resources in Washington, DC. Believing that the Agency subjected her to unlawful discrimination, Complainant contacted an Agency EEO Counselor to initiate the EEO complaint process.
On February 19, 2015, Complainant and the Agency entered into a settlement agreement to resolve the EEO matter. The settlement agreement provided, in pertinent part, that:
(3d) In the first full bi-week that follows the effective date of this Agreement, [the Agency agrees to] reassign Complainant to the position of Alternative Dispute Resolution (ADR) specialist, GS-13, step 7, series 301, within the Labor Relations Division with the attached position description; and
(11) This Agreement . . . contains all of the terms and conditions of the Agreement between the parties. No other conditions or assurances express or implied, are included.
The Agency reassigned Complainant to the named position on March 8, 2015. She remains assigned to the position. The Agreement expressly incorporated the position description that was to accompany the reassignment. That position description set forth the duties to be performed by Complainant. The position description states "this position serves as the Alternative Dispute Resolution (ADR) Program Manager, responsible for promotion, overseeing, and managing the USPTO's ADR program." Her major duties included "providing expert advice concerning policies and procedures and developing policies and procedures, as appropriate and encouraging maximum use of ADR.
On October 1, 2015, the former Chief, ER Division, OHR, USPTO assumed the position of Deputy Director, OHR. This individual became Complainant's second line supervisor. On October 19, 2015, the Director, OHR, called a meeting to discuss the status of the Agency's ADR program. The meeting included the "stakeholders from multiple business units, including the Director and Deputy Director of OHR, the Office of General Counsel and Complainant. The Senior Advisor, speaking for the Agency, advised the meeting participants that, while ADR is "alive and well, the Agency needed to have an ADR policy in place before any further non-EEO ADR occurred at the USPTO." Complainant was instructed to "temporarily pause" any provision of ASFT services until an Agency-wide ADR policy was approved. Since October 19, 2015, she has not been permitted to provide ADR services.
By letter to the Agency dated October 23, 2015, Complainant alleged that the Agency was in breach of the settlement agreement. Specifically, Complainant alleged that the Agency failed to "allow her to perform her duties as an ADR Specialist / Program Manager, specifically-facilitating discussions, conflict coaching, and supervisory coaching, without a policy." She seeks specific performance to be allowed to perform her ADR function.
In its November 20, 2015 FAD, the Agency concluded that it complied with the Agreement because it reassigned Complainant in accordance with the terms of the Agreement. The Agency acknowledged at footnote 1 of its decision that "there is some question as to whether the Chief, LR Division was [Complainant's] immediate supervisor as of March 8, 2015."
This appeal followed.
On appeal, Complainant contends that the Agency has not stated a legal reason in support of its decision to pause Complainant's continuing to perform her duties as an ADR Specialist / Program Manager. Complainant maintains that there is no requirement that the Agency have an Agency-wide ADR program in place prior to the provision of such services. In response, the Agency asserts that there has been no breach because the Agency has continued to have Complainant work on the Agency's ADR program by helping to draft and define the ADR policy and procedures.
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 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).
We find that the Agreement is valid and binding on both parties.
In the instant case, the Agreement required the Agency to reassign Complainant to a bona fide ADR Specialist position, which was identified as the position of Alternative Dispute Resolution (ADR) Specialist, GS-13, step 7, series 301, within the Labor Relations Division with the attached position description." The issue is whether the Agency breached the Agreement when, after reassigning Complainant to the designated position, management requested that Complainant pause her ADR duties until such time as the Agency had an ADR policy in place. We do not find that this is a breach of the Agreement. The Agreement did not take away the Agency's managerial discretion with regard to the operations of the ADR program. Complainant continues to hold the position at issue. Although the Agreement did not require the Agency have an ADR policy in place as a prerequisite for her being allowed to continue to function, the Agreement did not prevent the Agency from implementing such agency-wide policy in furtherance of its ADR program.
For these reasons, we find that the record supports the Agency's determination that it did not breach the Agreement.
CONCLUSION
Accordingly, we AFFIRM the Agency's final decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)
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 tends 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 or within twenty (20) calendar days of receipt of another party's timely request for reconsideration. 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. The requests 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 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
May 10, 2016
__________________
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
0120160859
5
0120160859