Donita B.,1 Complainant,v.Lisa S. Disbrow, Acting Secretary, Department of the Air Force, Agency.

Equal Employment Opportunity Commission

Mar 29, 2017

0120171179 (E.E.O.C. Mar. 29, 2017)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Donita B.,1 Complainant, v. Lisa S. Disbrow, Acting Secretary, Department of the Air Force, Agency. Appeal No. 0120171179 Agency No. 9L4W16020 DECISION Complainant filed an appeal with this Commission from a final decision by the Agency dated January 5, 2017, regarding Complainant’s claim that it breached the terms of the settlement agreement into which the parties entered. For the following reasons, the Commission AFFIRMS the Agency’s final decision. BACKGROUND On April 21, 2016, Complainant filed an informal complaint under Agency No. 9L4W16020 alleging she was subjected to discrimination based on disability when on April 18, 2016, she was not selected for the GS-0101-11/11 Military and Family Support Center, Work/Life Consultant. On July 9, 2016, Complainant and the Agency entered into a settlement agreement to resolve the matter. The settlement agreement provided, in pertinent part, that: 3. In exchange for the promises made by the Complainant in paragraph 2 of this agreement, the Agency agrees: a. The Complainant will be non-competitively placed in the new Military Family Support Section GS-11 position. The manger will complete the Request for Personnel Action (RAP) by 7 Oct 2016. 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. 0120171179 2 b. Management will conduct communications and conflict resolution training for the entire Military Family Support Section by 30 Aug 2016. 4. This agreement is binding upon the signatories upon their signature. Both parties understand and agree that, as a provision of this settlement, the agreement must be coordinated through the Legal Office and the Personnel Office for legal and technical sufficiency and will become fully binding upon the Agency only upon completion of that coordination. By letter to the Agency dated October 24, 2016, Complainant alleged that the Agency was in breach of the settlement agreement. Specifically, Complainant alleged that the Agency failed to place her in the non-competitive GS-11 position with the Military Family Support Section. On December 2, 2016, Complainant requested to move forward with filing an EEO complaint. The Agency acknowledged Complainant’s request the same day and mailed her a Notice of Right to File Discrimination Complaint - Agency Number 94LW16020. On December 16, 2016, Complainant filed her formal complaint of discrimination alleging she was subjected to discrimination based on disability when on April 18, 2016, she was not selected for the GS-0101-11/11 Military and Family Support Center, Work/Life Consultant. In its January 5, 2017 final decision, the Agency noted that the parties entered into a settlement agreement resolving Docket Number 9L4W16020. The Agency acknowledged that Complainant claimed she had not been placed in the non-competitive GS-11 position as specified in paragraph 3(a) of the agreement. The Agency found that final coordination of the agreement had not been conducted by the Judge Advocate Office or the Civilian Personnel for legal and technical sufficiency, as stated in paragraph 4. As a result, the Agency stated the agreement was not fully binding upon the Agency. The Agency explained that after the Civilian Personnel Office reviewed Complainant’s official personnel folder, it was determined that Complainant was not eligible to be noncompetitively promoted under the terms of the agreement. The Agency stated that per Complainant’s request to move forward with a formal complaint, it sent her a Notice of Right to File a Formal Complaint. 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 Complainant 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. Complainant 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 0120171179 3 settlement agreement, the Commission has generally relied on the plain meaning rule. See Complainant 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, Complainant alleged breach of the settlement agreement at issue and requested her complaint be reinstated as a result of the breach. The Agency then afforded Complainant a Notice of Right to File Discrimination Complaint. Thereafter, Complainant filed a formal complaint on December 16, 2016. On February 1, 2017, the Agency accepted Complainant’s formal complaint for investigation under Agency No. 9L4W16020. The record contains a February 24, 2017 Scheduling Notice from the investigator proposing to take declarations on March 3, 2017. Upon review, we find the Agency properly reinstated Complainant’s underlying complaint for processing in accordance with Complainant’s request. CONCLUSION Accordingly, the Agency’s final decision on Complainant’s breach claim is AFFIRMED. 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 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. 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. 0120171179 4 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 March 29, 2017 Date