0120131288
01-21-2016
Dolce P.,1 Complainant, v. Loretta E. Lynch, Attorney General, Department of Justice (Federal Bureau of Investigation), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Dolce P.,1
Complainant,
v.
Loretta E. Lynch,
Attorney General,
Department of Justice
(Federal Bureau of Investigation),
Agency.
Appeal No. 0120131288
Agency No. F076338
DECISION
Complainant filed an appeal from the Agency's January 11, 2013, final decision concerning her equal employment opportunity (EEO) complaint alleging 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., and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq. The appeal is accepted pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission DISMISSES the appeal.
ISSUE PRESENTED
Whether the present appeal should be dismissed because it arose out of the same facts as those set forth in EEOC Hearing No. 520-2010-00007X (Agency Case No. F-2005-6013) which was resolved by settlement agreement dated April 3, 2011.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Paralegal Specialist with collateral duties as an EEO Counselor at the Agency's Legal Unit, New York Field Office (NYFO) facility in New York, New York. In or around June 2004, Complainant sustained a non-work related back injury. The record reflects that Complainant was diagnosed in July 2004 with "ligamentous hypertrophy" in her lumbar vertebrae, and also a lump on the left side of her lower back. On September 13, 2004, she was diagnosed with "lumbar facet dysfunction" and was told she could be treated with facet nerve blocks or physical therapy. Complainant suffers from severe pain, and is unable to sit or stand for more than 30 minutes without having to change positions.
The instant case has a long procedural history, described in detail in EEOC Appeal No. 0120102765 (Dec. 10, 2010). Complainant filed an EEO complaint dated July 10, 2007, alleging that the Agency discriminated against her on the bases of sex (female), disability (back pain), and in reprisal for prior protected EEQ activity arising under Title VII when, from May 11, 2007 to July 3, 2007, her previously granted accommodation to work two days per week at the Hudson Valley Resident Agency (HVRA) was suspended.
Pursuant to EEOC Appeal No. 0120102765, the Agency's FAD was vacated and a supplemental investigation was ordered to determine whether Complainant was an individual with a disability. Thereafter, a copy of the investigation was forwarded to Complainant on February 18, 2011. The Agency advised Complainant that issuance of a new final decision (FAD) would be held in abeyance until a decision was issued by an EEOC Administrative Judge (AJ) in her 2005 complaint, EEOC Case No. 520-2010-00007X (Agency Case No. F-2005-6013), as the Office of Federal Operations (OFO) had ordered consolidation of the 2005 and 2007 complaints after finding that the two complaints were related.2
On April 3, 2011, the Agency and Complainant entered into a settlement agreement that resolved Complainant's 2005 complaint. The settlement agreement stated in relevant part:
1. [Complainant] hereby withdraws EEOC Case No. 520-2010-00007X, Agency Case No. F-05-6013 and any other complaints, appeals, or grievances arising from the facts therein.
Emphasis added.
On May 24, 2012, Complainant filed a second appeal with OFO regarding the instant complaint (the 2007 complaint), because she had not received the Agency's FAD. The Agency responded that it did not forward the supplemental investigation to the appropriate office for processing due to the previous directive in EEOC Appeal No. 0120102765 to consolidate the 2005 and 2007 complaints, and because Complainant filed an appeal. On October 2, 2012, an OFO Compliance Officer advised the Agency that a final decision needed to be promptly issued in the matter. In compliance with our previous decision and the Compliance Officer's directive, the Agency issued a FAD on January 11, 2013.
The Agency held that Complainant failed to establish that she was subjected to discrimination because of her sex, disability or prior EEO activity when her reasonable accommodation of working at the HVRA was rescinded from May 11 to July 3, 2007. Specifically, the Agency articulated a legitimate non-discriminatory reason for rescinding the reasonable accommodation, and reasoned that Complainant offered no evidence of discriminatory pretext. Additionally, the Agency stated there was no evidence of a causal nexus between Complainant's prior EEO activity and the rescission of her reasonable accommodation for the two-month period.
On appeal, Complainant is requesting that we reverse the Agency's FAD and order that a hearing before an AJ be held in this matter. Complainant contends that this is her only option at getting a fair and impartial review of her case. Complainant states that nothing additional was gained from the supplemental investigation ordered by OFO's December 10, 2010 decision. She maintained that most statements were written by interviewees outside the presence of the EEO Investigator, and that no follow-up interviews or fact-checking was conducted. Complainant states that this resulted in an incorrect factual background on which the analysis of her EEO complaint occurred.
ANALYSIS AND FINDINGS
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 (Dec. 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 (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. U.S. 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).
The Commission's decision in EEOC Appeal No. 0120102765 ordered the consolidation of Complainant's 2005 and 2007 complaints because the two complaints were related. Complainant was also advised that issuance of a decision in her 2007 complaint, would be held in abeyance until the 2005 complaint, was resolved by the AJ. The complaint was resolved in the form of a settlement agreement on April 3, 2011. The settlement agreement stated in relevant part:
1. [Complainant] hereby withdraws EEOC Case No. 520-2010-00007X, Agency Case No. F-05-6013 and any other complaints, appeals, or grievances arising from the facts therein.
We find that the plain meaning of the settlement agreement warrants dismissal of the instant appeal. The record clearly indicates Complainant and her attorney representative signed this settlement agreement on April 3, 2011. Complainant is not alleging any breach of the settlement agreement, and we find no evidence of coercion on the part of the Agency forcing Complainant to enter into the settlement agreement at issue. A review of the two complaints indicates that they both involve Complainant's continued efforts to seek a permanent accommodation at the HVRA. At various times, the Agency allowed her to work at the HVRA but would subsequently order her to return to the Legal Unit of the New York Field Office. Like EEOC Appeal No. 0120102765, we find that two complaints are related and arose from the same set of facts. Accordingly, we find that to rule on the merits of the appeal would be improper as this matter was clearly resolved in the April 2011 settlement agreement. We find that the subject claims raised in the instant appeal do not constitute new claims of discrimination, and were therefore resolved under the settlement agreement. See Complainant v. Dep't of Commerce (Bureau of the Census), EEOC Appeal No. 0120130129 (Feb. 21, 2014).
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, Complainant's appeal is DISMISSED. The 2007 complaint which forms the basis of this appeal was consolidated with her previous 2005 complaint, and therefore was resolved in a settlement agreement between Complainant and the Agency on April 3, 2011, because both complaints arose from the same facts.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0815)
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 (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
__1/21/16________________
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 the 2005 complaint, Complainant maintained that she was denied a reasonable accommodation when she was no longer allowed to work at the HVRA, effective March 2005.
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