0520110678
02-10-2012
Kathy Vochatzer, Complainant, v. Hilda L. Solis, Secretary, Department of Labor, Agency.
Kathy Vochatzer,
Complainant,
v.
Hilda L. Solis,
Secretary,
Department of Labor,
Agency.
Request No. 0520110678
Appeal No. 0120112691
Agency No. CRC-0009-028
DENIAL
Complainant timely requested reconsideration of the decision in Kathy
Vochatzer v. Department of Labor, EEOC Appeal No. 0120112691 (August
4, 2011). EEOC Regulations provide that the Commission may, in its
discretion, grant a request to reconsider any previous Commission decision
where the requesting party demonstrates 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.
ISSUE PRESENTED
The issue presented is whether Complainant met the criteria for
reconsideration by demonstrating that the appellate decision: (1)
involved a clearly erroneous interpretation of material fact or law;
or (2) will have a substantial impact on the policies, practices, or
operations of the Agency.
BACKGROUND
In the underlying case, Complainant alleged that the Agency violated the
terms of a February 17, 2010 settlement agreement when it transferred her
administrative and personnel matters from the Dallas Regional Office of
Audit to the Atlanta Regional Office of Audit. The settlement agreement
provided, in pertinent part,1 that while Complainant’s official duty
station remains the San Francisco Regional Office of Audit, “[m]ost
other administrative and personnel matters … will be handled by the
management staff of the Dallas Regional Office of Audit.”
The appellate decision found that it could not determine whether the
Agency breached the settlement agreement. In so finding, the appellate
decision cited the Agency’s assertion that the reason for the transfer
was to comply with the spirit of the settlement agreement. Specifically,
the appellate decision noted the Agency’s explanation that: (a)
Complainant had filed an EEO complaint against the supervisor (S1)
of the San Francisco Office; (b) as a result, the Agency transferred
Complainant’s administrative and personnel matters to the Dallas
Office; (c) subsequently, S1 became the interim supervisor of the Dallas
Office; and (d) the Agency transferred Complainant’s administrative and
personnel matters away from the Dallas Office to avoid having S1 involved
in Complainant’s administrative and personnel decisions. Because it
was unclear if the Agency explained to Complainant the reason for the
transfer when it occurred, the appellate decision remanded the matter to
the Agency and ordered the Agency to present Complainant with an offer to
transfer her administrative and personnel decisions to the Dallas Office.
ARGUMENTS ON RECONSIDERATION
In her request for reconsideration, Complainant, through her attorney,
argued that the appellate decision involved a clearly erroneous
interpretation of law when it failed to determine that a breach occurred
and when it failed to declare that she was a prevailing party entitled to
attorney’s fees. In support of her argument, Complainant asserted that
the Agency admittedly and intentionally violated the plain language of the
settlement agreement when it transferred her administrative and personnel
matters away from the Dallas Office without reasonable justification.
In addition, Complainant asserted that she succeeded on a significant
issue on appeal and achieved the exact benefit sought as relief – to
have the Dallas Office handle her administrative and personnel matters.
In response,2 the Agency argued that Complainant failed to demonstrate
that the appellate decision clearly erred.
ANALYSIS AND FINDINGS
Upon review, we find that Complainant’s request fails to demonstrate
that the appellate decision involved a clearly erroneous interpretation
of material fact or law, or that the appellate decision will have a
substantial impact on the policies, practices, or operations of the
Agency.
As an initial matter, we find that the record was adequately developed
for the appellate decision to determine whether the Agency breached the
settlement agreement. While the appellate decision improperly failed to
determine whether the Agency breached the settlement agreement, we find
that it does not warrant reconsideration for the reasons explained below.
In the instant case, we find that the Agency did not breach the settlement
agreement, and is in substantial compliance with the terms of the
agreement. The Commission has previously found substantial compliance
with the terms of a settlement agreement in cases where agencies have
committed, in good faith, a technical breach of a provision of the
agreement which did not undermine its purpose or effect. See e.g., Baron
v. Dep’t of the Treasury, EEOC Request No. 05930277 (Sept. 30, 1993);
Ramirez v. U.S. Postal Serv., EEOC Request No. 05930283 (Aug. 12, 1993).
First, we agree with the Agency’s assertion that the purpose of the
provision stating that the Dallas Office would handle Complainant’s
administrative and personnel matters was to ensure that S1, the subject of
her prior EEO complaint, did not supervise her. While Complainant’s
attorney argued that the Agency failed to provide any evidentiary
support for its assertion, we find that Complainant’s own words seem to
indicate that the Agency’s reason for transferring her administrative
and personnel matters to the Dallas Office was to remove her from the
hostile environment allegedly created by S1. Specifically, Complainant
wrote in her Notice of Breach to the Agency:
I … was transferred to Dallas as part of a [s]ettlement [a]greement
in May of 2008. This agreement was reached after I filed a complaint
against [Agency] management. In my complaint I referred to the hostile
environment in the San Francisco Office of Audit. I have repeatedly
identified [S1] as the cause of this hostility. The [A]gency agreed on
my transfer to Dallas and included the language concerning my assignment
to the Dallas Office of Audit in the May 2008 [settlement agreement].
The language from this settlement agreement concerning my assignment
to the Dallas Office of Audit was restated in the settlement agreement
dated in February 2010.
Second, it is undisputed that the Agency transferred Complainant’s
administrative and personnel matters away from the Dallas Office after
S1 became the interim supervisor of the Dallas Office.
Based on the above, we find that the Agency’s actions constituted a
technical breach of the provision that did not undermine the provision’s
purpose or effect – to avoid having S1 supervise Complainant.
In addition, Complainant submitted no evidence that the Agency did not
act in good faith. Finally, we note that the Agency cured any technical
breach it committed before the issuance of the August 4, 2011 appellate
decision. In an August 2, 2011 email,3 the Agency informed Complainant
that, “[a]s we discussed on the teleconference, effective July 1,
2011, you are now administratively assigned to the Dallas [O]ffice.”
Accordingly, we find that the Agency substantially complied with the
settlement agreement and, as we have found no breach of settlement,
Complainant is not entitled to attorney’s fees in this matter.
CONCLUSION
After reviewing the previous decision and the entire record, the
Commission finds that the request fails to meet the criteria of 29
C.F.R. § 1614.405(b), and it is the decision of the Commission to DENY
the request. The decision in EEOC Appeal No. 0120112691 remains the
Commission's decision. There is no further right of administrative
appeal on the decision of the Commission on this request.
COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (P0610)
This decision of the Commission is final, and there is no further right
of administrative appeal from the Commission’s decision. 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.
RIGHT TO REQUEST COUNSEL (Z0610)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request from the Court that
the Court appoint an attorney to represent you and that the Court also
permit you to file the action without payment of fees, costs, or other
security. See Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. § 2000e et seq.; the Rehabilitation Act of 1973, as amended,
29 U.S.C. §§ 791, 794(c). The grant or denial of the request is within
the sole discretion of the Court. Filing a request for an attorney with
the Court does not extend your time in which to file a civil action.
Both the request and the civil action must be filed within the time limits
as stated in the paragraph above (“Right to File a Civil Action”).
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
____2/10/12______________
Date
1 The settlement agreement also provided that the Agency will: (a)
pay Complainant’s attorney up to $17,500 in attorney’s fees;
(b) retroactively promote Complainant to a GS-13, Step 4; (c) pay
Complainant back pay; and (d) pay for and allow Complainant to attend
the Certified Internal Auditor (CIA) Exam Review Course and take the
CIA certification exam.
2 Complainant contended that the Agency’s September 22, 2011 response
was untimely because the date of service was September 1, 2011.
The opposing party shall have 20 days from the date of service in
which to submit any brief or statement in opposition to a request for
reconsideration. Equal Employment Opportunity Management Directive for 29
C.F.R. Part 1614, at Ch. 9, § VII.B.3 (Nov. 9, 1999). The Commission
has declined to find untimely a party’s response to a request for
reconsideration when there is no evidence of the date on which the party
received the request. See Spalding v. Dep’t of Defense, EEOC Request
No. 05970598 (Apr. 16, 1998). Although Complainant mailed her request for
reconsideration to the Agency on September 1, 2011, the record contains
no evidence of when the Agency actually received Complainant’s request.
Accordingly, we will consider the Agency’s response.
3 The email was not a part of the record when the Commission issued
its previous decision. Complainant submitted the email as part of her
request for reconsideration. As the record reflects that the Agency has
“administratively assigned” Complainant back to the Dallas Office,
we find it unnecessary to repeat the appellate decision’s order.
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0520110678
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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