0120162001
10-27-2016
Josefina P.,1 Complainant, v. Mary Jo White, Chair, Securities and Exchange Commission, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Josefina P.,1
Complainant,
v.
Mary Jo White,
Chair,
Securities and Exchange Commission,
Agency.
Appeal No. 0120162001
Agency No. 000282015
DECISION
Complainant timely appealed to this Commission from the Agency's April 27, 2016 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as the Capital Planning Branch Chief within the Agency's Office of Information Technology in Washington, DC.
Believing that the Agency subjected her to unlawful discrimination, Complainant contacted an Agency EEO Counselor to initiate the EEO complaint process. Complainant and the Agency resolved the matter by entering a settlement agreement ("the Agreement") which became effective on July 31, 2015. In Paragraph 3 of the Agreement, the Agency agreed:
3a. To realign the Capital Planning Branch ("CPB") from the Business Management group to the Enterprise Architecture group ("EA"); and
3b. To reassign [Complainant's] Capital Planning Branch Chief position from the supervision of the Assistant Director for Business Management to the supervision of the Assistant Director for Enterprise Architecture.
On or around March 22, 2016, Complainant notified the Agency that she believed it was in breach of the Agreement, and requested that the Agency specifically implement its terms.
In July 2015, when the Agreement was negotiated, the Office of Information Technology ("OIT") consisted of three offices: Business Management, Information Security, and Data Strategy and Operations, which contained the EA group. The Capital Planning Branch ("CPB") was aligned to the Business Management office. When Complainant alleged that her supervisor, the Associate Director of Business Management ("S1"), subjected her to discrimination, management, including Complainant's second level supervisor ("S2"), the OIT Director/Chief Information Officer, sought to resolve the matter by realigning CPB to another office in OIT, namely the Enterprise Architecture ("EA") group. At the time, the role of Complainant's new supervisor, the Assistant Director of EA ("S3") was vacant. When S3 arrived in September 2015, he observed to S2 that CPB's operational function did not make sense as part of the EA group and would be more effective aligned under Business Management.
In September 2015, S2 reached out to other management, the employee union, and outside experts to plan an OIT-wide reorganization. The three offices comprising OIT at the time of the Agreement were eliminated, and for the most part, the branches within those offices were reconfigured into two divisions: Solutions Delivery and Operations. Solutions Delivery included a new Project Intake and Management office, reflecting an overhaul in Agency operations related to intake. EA was expanded and realigned under Operations. Management officials directing the realignment (including S1, S2 and S3) and outside consultants determined that it made the most sense from an operations perspective for CPB, which was integral to the intake process, to realign to the Project Intake and Management Office. Upon realignment, Complainant would report to the Assistant Director of Solutions Delivery.
On March 14, 2016, S2 notified Complainant about the upcoming reorganization, to be implemented that May. Complainant responded that she did not want to work under the Assistant Director of Solutions Delivery, who allegedly acted "hostile" toward her. Complainant asked S2 to keep CPB aligned under EA and that she continue reporting to S3. On or around March 22, 2016, S2 met with Complainant, informed her that she would remain in EA and continue reporting to S3, however, she would do so on temporary assignment as an "Individual Contributor." CPB, including Complainant's (temporarily vacant) position of CPB Branch Chief would realign to Solutions Delivery as planned. While temporarily reassigned, Complainant would maintain the same pay, grade, and supervisory status, but no longer manage staff. Complainant alleges that S2 provided no time frame for the temporary assignment, and in her absence from CPB several of her (prior) staff members were reassigned. Complainant was also stripped of other responsibilities, such as her management and leadership roles on a number of project review boards, and planning committees.
Complainant alleges the realignment of CPB out of EA and to a supervisor other than the EA Assistant Director constitutes a breach of Paragraphs 3a and 3b, and that transferring her from CPB Branch Chief to a "temporary" position breached Paragraph 3b of the Agreement. Upon review, the Agency determined that it did not breach the Agreement.
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 (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. 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 v. United States Postal Serv., EEOC Appeal No. 0120140143 (Feb. 20, 2014).
Where an individual bargains for a position, without any specific terms as to the length of service, the Commission has held that it would be improper to interpret the reasonable intentions of the parties to include employment in that exact position forever. Winkles v. United States Postal Serv., EEOC Appeal No. 01A60724 (May 2, 2006); Carter v. United Postal Serv., EEOC Appeal No. 01A60569 (May 25, 2006); Holley v. Dep't of Veterans Affairs, EEOC Request No. 05950842 (Nov. 13, 1997). Further, the Commission has held that in the absence of a specific time frame in a settlement agreement, it is interpreted to be for a reasonable amount of time. Parker v. Dep't of Defense, EEOC Request No. 05910576 (Aug. 29, 1991); Gomez v. Department of the Treasury, EEOC Request No. 05930921 (Feb. 10, 1994).
Complainant's breach allegations arise from her involuntary transfer out of her position as Branch Chief of the Capital Planning Branch ("CPB") and the realignment of CPB outside of the Enterprise Architecture group ("EA"). The Agency attributes both actions to changes in circumstances and operational necessity, and on appeal, aptly argues that the Agreement does not contain a specific time frame for CPB to remain in EA, nor does it guarantee Complainant will hold the position of CPB Branch Chief indefinitely. The Agency further determined that the nearly 8 months Complainant spent as Branch Chief while CPB was aligned under EA was a reasonable amount of time, and found no evidence that it entered or implemented the Agreement in bad faith.
The Agency provides that Complainant was removed from the Branch Chief position due to a change in circumstances; specifically, S2 lost confidence in Complainant's supervisory capabilities. The record supports that S2 became "greatly concerned" by complaints from Complainant's staff during a meeting that was convened at the request of a union official. S2 reported the matter to the Agency's Office of Human Resources and Office of General Counsel, which initiated investigations. On appeal, Complainant provides no evidence or response to challenge this explanation. Nothing in the plain language of the Agreement bars the Agency from temporarily removing Complainant from her position as Branch Chief in the event that her ability to perform the duties of the position is called into question and her conduct is under investigation. Hence we find Complainant's temporary removal from a position that was specifically awarded in a settlement agreement does not constitute breach in this instance.
As for the Agency's decision to move CPB out of EA to Solutions Delivery and under a new supervisory chain, we find the Agency's explanation of operational necessity persuasive. Complainant's allegations that S1 and S2 used their authority over the reorganization to intentionally breach the Agreement are not supported. Both external and internal parties to the reorganization, including S3 as Complainant's supervisor in EA, recommended that CPB would be more operationally effective within Project Intake and Management as opposed to EA. Complainant has not provided any argument or contradictory evidence that CPB would be more effective from an operational standpoint if it remained in EA. We see no indication of bad faith, and note that despite the OIT reorganization, the Agency maintained the initial purpose and effect of the Agreement, as neither the CPB, nor Complainant in her temporary position, are aligned under the direct supervision of Complainant's alleged harasser, S1.
Finally, we note that Complainant's breach claim raises new allegations of discrimination. Pursuant to 29 C.F.R. � 1614.504(c), allegations that subsequent acts of discrimination violate a settlement agreement shall be processed as separate complaints. Therefore, if Complainant intended to raise a claim of retaliation, Complainant should contact an EEO Counselor pursuant to 29 C.F.R. � 1614.105. Specifically, Complainant alleges that the Agency retaliated against her for prior EEO activity (including the instant complaint), and that she has been subjected to harassment. As these are new allegations of discrimination, they are beyond the scope of the Agreement, so we cannot address them in this decision If Complainant has not already done so, she may raise these allegations with an EEO counselor and pursue them as a separate complaint.
CONCLUSION
Accordingly, the Agency's finding that no breach of the Agreement occurred 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.
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, Director
Office of Federal Operations
October 27, 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.
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