0120180176
03-13-2018
Leticia W,1 Complainant, v. Jay Clayton, Chair, Securities and Exchange Commission, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Leticia W,1
Complainant,
v.
Jay Clayton,
Chair,
Securities and Exchange Commission,
Agency.
Appeal No. 0120180176
Agency No. 000462016
DECISION
Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from a final decision (FAD) by the Agency dated September 15, 2017, 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 compliance action, Complainant worked as a Branch Chief, Continuity of Operations and Policy, Business Management Operations, at the Agency's Office of Security Operations (OSO) facility in Washington, DC.
On August 24, 2016, Complainant and the Agency entered into a settlement agreement to resolve an EEO matter. The settlement agreement provided, in pertinent part, that:
(1) Complainant agreed to waive and release all of her claims related to the above referenced complaint SEC 000462016;
(2) The Agency agreed to rescind the Memorandum of Counseling given the Employee dated April 22, 2016, within 30 days of the signing of this Agreement;
(3) The Agency agrees to make its best efforts to include the Employee on matters involving the Continuity of Operations Branch; and
(4) The Agency agrees to delegate the responsibility of the Special Security Officer (SSO) to the Employee and her staff. Employer retains the right to determine in the future whether or not it is in the best interest of the Office of the Security Services to give responsibility to another manager or branch and reassign that responsibility.
The Agency delegated full responsibility of the SSO to Complainant. Complainant continued to exercise that responsibility until she was placed on a detail in December of 2016. Several months after that, the SEC approved an operational realignment of OSO, which was designed to provide increased efficiency and balance the workload. On July 9, 2017, Complainant learned that the Agency removed her responsibilities for the Sensitive Compartmentalized Information Facilities (SCIF) and reassigned the duties to a subordinate.
By letter to the Agency dated August 11, 2017, Complainant alleged that the Agency was in breach of the settlement agreement. She requested that the Agency reinstate her complaint. Complainant also cited seven new incidents and indicated that she wished to file additional complaints. Specifically, she stated that, since June 2017, the Agency verbally reprimanded her, undermined her authority with her team, and denied her assignments and the information that Complainant had requested, in addition to removing her SCIF duties.
On September 11, 2017, Complainant further alleged that management breached paragraph 3a of the Agreement when, on May 16, 2017, a management official referred to the April 22, 2016 memorandum that was supposed to be expunged. The manager told her that she had previously been reminded of her obligation to conduct herself appropriately. The record shows that Complainant filed a subsequent complaint 000212017 in which she advised the EEO Investigator that the Agency breached the Agreement.
Agency Decision
The Agency found that her breach claims were untimely raised. The Agency reasoned that Complainant learned of the reassignment on July 6, 2017, but she did not raise it with the EEO Director within the 30-day timeframe. Next, and assuming that the claims were timely raised, the Agency found the Agreement was not breached. The Agency reasoned that its actions were permitted under the terms of the Agreement because the Agreement gave the Agency discretion to reassign the duties if the Agency determined that it was in the best interest to make a change.
Regarding her claim that the record had not been expunged, the Agency found no breach because it reasoned that the May 16, 2017 memorandum did not expressly reference the earlier memorandum. The Agency concluded that Complainant did not establish that the Agency breached the terms of the Agreement. This appeal followed.
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 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 (August 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 (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, we find that Complainant failed to show that the Agency breached the Agreement. The Agreement required the Agency to delegate full responsibility of the SSO to Complainant, which the Agency did. The Agreement did not require that the Agency continue the duties forever. Moreover, the Agreement expressly permitted the Agency to retain the right to determine, in the future, whether or not it is in the best interest of the Office of the Security Services to give responsibility to another manager or branch and reassign that responsibility. The Agency made such a determination. The record also fails to support the claim that the Agency breached the Agreement when Complainant was counseled because there is insufficient evidence to show that the counseling was based on the expunged record.
To the extent that Complainant wishes to file new claims, she should contact an EEO Counselor to file her claims, if she has not already done so.
CONCLUSION
Accordingly, we AFFIRM the Agency's Breach Decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
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 tends 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. A party shall have twenty (20) calendar days of receipt of another party's timely request for reconsideration in which to submit a brief or statement in opposition. 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. Complainant's request 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 agency's request must be submitted in digital format via the EEOC's Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g). 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
March 13, 2018
__________________
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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