Mari R.,1 Complainant,v.Sonny Perdue, Secretary, Department of Agriculture (Animal and Plant Health Inspection Services), Agency.

Equal Employment Opportunity Commission

Mar 16, 2018

0120172432 (E.E.O.C. Mar. 16, 2018)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Mari R.,1
Complainant,

v.

Sonny Perdue,
Secretary,
Department of Agriculture
(Animal and Plant Health Inspection Services),
Agency.

Appeal No. 0120172432

Agency No. APHIS-2016-00488

DECISION

Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC
or Commission) from a final decision (FAD) by the Agency dated June 8, 2017, finding that it
complied 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 Plant Protection and
Quarantine Technician, GS-0421-07, located in Yakima, Washington. Believing that the
Agency subjected her to unlawful discrimination, Complainant contacted an Agency EEO
counselor to initiate the EEO complaint process. On June 17, 2016, Complainant and the
Agency entered into a settlement agreement to resolve the matter. According to the terms of the
Agreement, the Agency would, in pertinent part:

A.1. [R]eassign Complainant’s permanent duty station to her home residence
within thirty (30) calendar days of the effective date of the Agreement. This
provision does not restrict the Agency from any future reorganization or

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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realignment of the Agency or the Apples to Mexico Export Program.
Complainant’s ongoing placement in this permanent official duty station will be
subject to all applicable laws, regulations, and policies under the direction of
AGENCY; This provision shall remain in effect as long as the male plant
protection technician (in the Apples to Mexico Export Program) continues to have
his home as his duty station AND as long as the incumbent Administrative
Services Assistant (ASA) continues to occupy her position in the Yakima Office.
Regardless of any other position either the Complainant or the ASA may
encumber in the future, under no circumstances will they be co-located in the
same office simultaneously.

A.3. To allow the Complainant up to 2 hours per pay period to participate in
training course(s) and/or educational opportunities, designed for the purpose of
career advancement. The aforementioned 2 hours would include training and/or
educational opportunities listed under the Complainant’s approved Individual
Development Plan (IDP). The timeframe by which the Complainant will be
allowed up to 2 hours per pay period concludes on December 31, 2017. The
aforementioned course(s) would include trainings which are not mandated by the
AGENCY.

Complainant asserts that as of March 2017, the Agency failed to “provide her with the equipment
needed to perform [her] duties,” in violation of the Agreement, Section A.1., and contrary to
verbal assurances at the time of settlement. Specifically, she asserts that as of March 2017, her
duty station was not equipped with the materials necessary for her to work effectively from
home. In support of her assertion, Complainant submits an email dated May 17, 2017 with the
subject line “the small things to wrap up,” that vaguely references an IT issue that needs to be
addressed.

Complainant further alleges that the Agency violated Section A.3 by not providing her with
Time and Attendance (T&A) codes for working with peers and shadowing the work of a Plant,
Protection and Quarantine (PPQ) Officer. Complainant submits an email dated December 1,
2016, from her supervisor, the State Plant Health Director, to two Information Technology (IT)
employees requesting that Complainant’s time T&A include accounting codes, to ensure she is
paid through the proper funding program. Complainant’s notice of breach states the lack of
proper accounting codes prevented her from receiving training from her peers and other
educational opportunities as prescribed in the Agreement.

In its June 8, 2017 FAD, the Agency concluded that the Agency did not breach the settlement
agreement.

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ANALYSIS AND FINDING

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, the record shows that Complainant’s duty station was changed to her personal
residence effective May 29, 2016, before the Agreement had in fact been finalized on June 17,
2016. With respect to Complainant’s assertion that she did not have the equipment sufficient to
complete her assignments from home, we agree with the Agency and find that Complainant has
failed to prove that the Agency failed to comply with this term. Complainant does not state and
the record does not show what specific items were missing or what IT aspects were unresolved
after May 31, 2016. However, the record does indicate that any IT issue was minor and that the
Agency was working to resolve the issue.

We also agree with the Agency in concluding that Complainant fails to establish that it breached
the terms of the Agreement with respect to training and educational opportunities. We agree that
the Agreement does not require the Agency to create new T&A codes “allowing [Complainant]
time to shadow positions and get experiences that [she] could write on a resume in the future,”
nor does the Agreement state that Complainant’s training and educational opportunities were
dependent upon the creation of new T&A codes. The record shows that on March 13, 2017,
Complainant submitted her proposed IDP for fiscal year 2017 (i.e., September 29, 2016 through
September 29, 2017). In an email dated April 11, 2017, Complainant’s supervisor asked
Complainant to revise her proposal to better address the purpose of career advancement, and
requested that Complainant meet with him by telephone to discuss “the multiple resources
available for career advancement.” We agree with the Agency in concluding that the evidence
supports the contention that during the relevant time both parties were in the process of meeting
to discuss the multiple resources available for career advancement. In addition, aside from the
possible inability to create new T&A codes, the record is devoid of evidence to show that
Complainant was denied training opportunities at any time. Accordingly, we find insufficient
evidence to support Complainant’s assertion that the Agency failed to meet its training and
educational requirements under the Agreement.
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CONCLUSION

Upon review of the record, we AFFIRM the Agency’s final decision in concluding that
Complainant has failed to prove that the Agency violated any term of the Agreement dated June
17, 2016.

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 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. 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).

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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 16, 2018
Date