0120141335
04-11-2016
Chanelle B.,1 Complainant, v. John Kerry, Secretary, Department of State, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Chanelle B.,1
Complainant,
v.
John Kerry,
Secretary,
Department of State,
Agency.
Appeal No. 0120141335
Agency No. DOSI012813
DECISION
Complainant timely appealed to this Commission from the Agency's March 26, 2014, decision, which found it to be in compliance with 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Senior Compliance Officer at the Agency's Private Sector Exchange in the Bureau of Educational and Cultural Affairs ("ECA") Office of Exchange Coordination and Compliance ("ECC") in Washington, D.C.
In May 2013, Complainant, believing she had been the subject of discrimination, initiated contact with an EEO Counslor. On or around August 15, 2013, Complainant and the Agency successfully engaged in mediation and entered into a settlement agreement ("the Agreement") to resolve her EEO complaint.
The parties to the Agreement included the Director of the Executive Office, who acted as the resolving official ("RO") during mediation, and in carrying out the terms of the Agreement, and the Deputy Assistant Secretary for Private Sector Edge as the Responding Management Official ("RMO") named in Complainant's initial complaint. RMO oversaw four offices including ECC, and Complainant's first line supervisor ("S1"), the Director of ECC, reported directly to RMO. Complainant had already filed multiple complaints against RMO.
By letter dated October 30, 2013, Complainant notified the Agency that it was noncompliant with the Agreement, and requested that her complaint be reinstated for further processing from the point processing ceased when they entered the Agreement, citing 29 C.F.R. � 1614.504(a).
Specifically, Complainant alleged that:
1. The Agency denied Complainant payment, breaching Paragraph 9(f), which provides:
9(f) The Agency has agreed to pay the Aggrieved eight thousand and twenty-seven dollars ($8,027.00) within sixty (60) calendar days of the execution of this Agreement by electronic transfer to the account on file for payment of her salary. The Department will not make any deductions from this payment and will issue a Form 1099 for the amount of the payment.
2. RMO and RO negotiated the terms of the six month Developmental Detail in 10(a) ("the Detail") in bad faith, and have since obstructed Complainant's efforts to perform her obligation under Paragraph 10(a), which provides:
10(a) Complainant has agreed to seek a developmental detail to an organization within the Agency for a period of not more than one-hundred eighty (180) calendar days beginning on a date mutually agreed to by the parties, so as to harmonize with the demands of the office and timing of the Aggrieved's work commitments. Aggrieved agrees the objective of the detail will have a close nexus to the mission and core work goals of the Bureau of Educational and Cultural Affairs' Office of Exchange Coordination and Compliance (ECA/EC/ECC), and that the detail will be of such duration to allow her to begin the Graduate School's Executive Potential Program training in calendar year 2014. The detail pursued by the Aggrieved must have a nexus to the work performed by ECA/EC/ECC.
3. RMO and RO were using the Agreement as pretext for retaliation against Complainant for her past EEO activities; specifically, delaying payment per 9(f) and interpreting 10(f) in a way that would disqualify her first choice for a detail assignment.
Once the Agreement was executed, RMO contacted S1 and asked her to facilitate a detail in accordance with the six month developmental detail described in Paragraph 10(a) ("10(a) Detail"). S1 arranged two options, which Complainant felt were not "developmental" enough to satisfy the Agreement. Complainant independently contacted the Agency's Office of the Inspector General ("OIG") and both S1 and RO informed her that she had not shown a clear nexus, per the 10(a) Detail requirements. Complainant also pursued a detail within the ECA Policy Office, and S1 and RO raised the same concern. In an October 3, 2013 letter to RMO, Complainant disputed the lack of nexus. On October 4, 2013, RMO instructed Complainant to provide her with an outline describing the projects she would work on and how a nexus with ECA Policy existed based on the terms of the Agreement by October 14, 2013. When Complainant did not provide the outline, RMO followed up on October 22, 2013, and RO provided Complainant with the proper contacts within ECA Policy to discuss a potential detail. However, Complainant had ceased pursuing the 10(a) Detail because she believed the Agency was in breach of Paragraph 9(f) of the Agreement and hoped to reinstate her complaint.
The Agency investigated Complainant's claims pursuant to 29 C.F.R. � 1614.504 and found no breach of the terms in Paragraphs 9(f) and 10(a) of the Agreement.
The Agency also advised Complainant that a claim of reprisal concerning a settlement agreement is a separate EEO claim under 29 C.F.R. � 1614.504(c), and in order to issue a decision on the matter, she must first pursue EEO processing per 29 C.F.R. � 1614.106.
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 record supports that Complainant, herself an attorney, knowingly and voluntarily entered the Agreement on the advice of counsel.
Paragraph 9(f)
The Commission has found substantial compliance with the terms of a settlement agreement where agencies have committed, in good faith, a technical breach of a provision of the agreement which did not undermine its purpose or effect. The Commission has also found that the failure to satisfy a time-frame specified in a settlement agreement does not prevent a finding of substantial compliance of its terms, especially when all required actions were subsequently completed. See Mopsick v. Dep't of Health and Human Serv., EEOC Appeal No. 0120073654 (Aug. 17, 2009) citing Baron v. Dep't of the Treasury, EEOC Request No. 05930277 (Sept. 30, 1993) For example, in Hoyland v. Dep't of the Navy, we found substantial compliance where an Agency that failed to pay Complainant $3000 within ninety (90) days, in accordance with a Settlement Agreement, made the payment within 30 days after Complainant gave notice of noncompliance, and demonstrated the initial delay was due to administrative error, not bad faith. EEOC Appeal No. 0120103271 (Dec. 2, 2010)
Complainant acknowledges that "within hours" of notifying the Agency of its noncompliance on October 30, 2013, the Director of the Agency's Budget Office emailed her the form to complete in order to receive an electronic payment. Complainant also acknowledges that the Agency made additional attempts on November 15 and 18, 2013. Complainant declined to provide the information because she did not want to accept payment, instead seeking revocation of the Agreement. After thoroughly reviewing the record, we find no evidence that the Agency acted in bad faith, particularly considering that the agreed upon payment date, October 14, 2013, fell within a government shutdown from October 1 through 17, 2013.
However, the Agency has provided insufficient evidence to demonstrate full compliance. There is no evidence in the record that indicates that Complainant was ever issued payment for the agreed upon amount.
Paragraph 10(a)
The Commission has 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 (Aug. 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. United States Postal Serv., EEOC Request No. 05910787 (Dec. 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).
Complainant alleges the 10(a) Detail was a compromise reached during mediation; after she requested, but was not granted, a permanent GS-15 position. The mediators allegedly characterized the 10(a) Detail as a "cooling off period" from the "animosity" between Complainant and RMO. Complainant states that "cooling off period" signaled - in her words - "a clear meeting of the minds of the parties....that she intended to leave ECA/EC/ECC on a detail - and not come back." Complainant argues that RMO and RO are intentionally emphasizing the "nexus" requirement in order to protect RMO's reputation by keeping Complainant from interacting with RMO's senior leadership, located in OIG and the ECA Policy Office. Complainant also alleges RMO and RO are using a narrow interpretation of nexus to deny her developmental opportunities that would rehabilitate her career.
Based on a "Plain Meaning" interpretation of the language in the Agreement and a review of the record, we find no evidence that RMO and RO's actions were in breach of Paragraph 10(a). Complainant's argument concerning Paragraph 10(a) cannot be considered because it is based on an alleged "mutual understanding" among the parties that is not expressed within the terms of the Agreement.
Retaliation
EEOC Regulation 29 C.F.R. � 1614.504(c) provides that allegations that subsequent acts of discrimination violate a settlement agreement should be processed as separate complaints. We find that the Agency properly limited its decision to Complainant's breach claims only; and sufficiently advised Complainant to pursue her claims of retaliation as a separate complaint.
CONCLUSION
Accordingly, the Agency's finding of no breach is AFFIRMED with regard Paragraph 10(a) and the delay in implementing Paragraph 9(f).
However, as the Agency has not provided adequate evidence that it is in full compliance with Paragraph 9(f) of the Agreement, we REMAND the matter to the Agency for action in accordance with the following Order.
ORDER
1. Within fifteen (30) calendar days after the date this decision becomes final, the Agency must supplement the record with documentation showing that it fully complied with Paragraph 9(f) by providing proof of payment of the eight thousand and twenty-seven dollars ($8,027.00) owed to Complainant.2 Sufficient documentation of proof of payment may be a copy of a check, or a screen shot of an electronic transaction which includes payee name, date, and amount paid. If Complainant continues to refuse payment, the Agency may supplement the record with an affidavit(s) by Agency officials with knowledge of the matter describing the Agency's efforts to pay Complainant per Paragraph 9(f) (including issuing the delivering Complainant a check if she refused to fill out the electronic payment form) and why it was unable to do so.
2. The Agency must submit a Compliance Report within thirty (30) calendar days of completion of the ordered action, per the instructions below, including a copy of the Agency's Letter of Acknowledgement of this Order to Complainant and including all relevant documents discussed in Part 1 of this Order.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION
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 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, P.O. Box 77960, Washington, DC 20013. 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
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. signature
Carlton M. Hadden, Director
Office of Federal Operations
April 11, 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 This decision becomes final thirty five (35) calendar days (or the next business day if the 35th day falls on a weekend or federal holiday) after the date it is issued. This is to account for the parties' opportunity to request reconsideration, described in the next section.
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