0120162604
01-12-2017
Maricela P.,1 Complainant, v. Jacob J. Lew, Secretary, Department of the Treasury (Internal Revenue Service), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Maricela P.,1
Complainant,
v.
Jacob J. Lew,
Secretary,
Department of the Treasury
(Internal Revenue Service),
Agency.
Appeal No. 0120162604
Agency Nos. IRS-11-0581F
IRS-13-0681F
DECISION
Complainant filed an appeal claiming that the Agency was not in compliance with the terms of the settlement agreements into which the parties entered.2 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 a GS-0512-11 Internal Revenue Agent at the Agency's facility in Green Bay, Wisconsin.
Believing that the Agency subjected her to unlawful discrimination, Complainant contacted an Agency EEO Counselor to initiate the EEO complaint process. On May 11, 2016,3 Complainant and the Agency entered into a settlement agreement to resolve the matter. The settlement agreement provided, in pertinent part, that the Agency agrees:
To process the Complainant's voluntary transfer from the Green Bay, Wisconsin post of duty to the Chicago, Illinois post of duty at 230 N. Dearborn St, and assignment to Group 1 of the Planning and Special Projects Area, Field Examination Midwest, effective July 10, 2016. The Complainant will remain in the position of a GS-0512-11 Internal Revenue Agent.
By letter to the Agency dated July 12, 2016, Complainant's attorney (Attorney) alleged that the Agency was in breach of the settlement agreement, and requested that the Agency implement its terms. Specifically, Complainant alleged that the Agency failed to provide her with the GS-0512-11 Internal Revenue Agent position. The Attorney sent another letter to the Agency on July 28, 2016, stating Complainant had been in the position for three weeks without receiving official paperwork (SF-50) stating that she has been transferred to Chicago. As such, she had not received the correct locality pay. By letter dated August 2, 2016, Complainant repeated her claims that she has not been transferred properly to the Chicago office. She also asserted that she has been subjected to additional acts of retaliation.
When the Agency failed to respond to the letters by the Attorney and Complainant, Complainant filed the instant appeal. The Attorney filed an appeal brief clarifying the issues remaining before the Commission. The Attorney indicated that the Agency had since provided Complainant with an SF-50 stating that she was transferred to the Chicago office and retroactively paid for the change in locality pay. As such, the Attorney stated that the issue of locality pay has been resolved.
Therefore, the only outstanding issue, as clarified by the Attorney, is the issue of Complainant's reassignment. The Attorney asserted that Complainant has not been assigned to the GS-11 Internal Revenue Agent position but actually to a Tax Auditor position. The Attorney argued that the reassignment is effectively a demotion because the Tax Auditor position only goes to the GS-11 level, while the Internal Revenue Agent has promotion opportunities up to the GS-14 level. In addition, the Attorney argued that the work assigned to Complainant in the new position is not as challenging as her prior position and had she known that she would be performing Tax Auditor duties, Complainant would not have taken the reassignment.
The Agency responded to the appeal. The Agency indicated that the record clearly establishes that Complainant has been reassigned from her GS-11 Internal Revenue Agent position in Green Bay to a GS-11 Internal Revenue Agent position in Chicago, as provided in the agreement. With regard to the duties she is being assigned to perform, the Agency asserted that Complainant was still in training to perform the full range of duties for her position. The Agency asserted that Complainant raised her claim of breach before she had completed her training. The Agency also provided an affidavit from Complainant's second line supervisor (Supervisor) who averred that the tax compliance duties are part of her role as a GS-11 Internal Revenue Agent. Finally, the Agency contended that Complainant's claim of demotion are false in that regardless of Complainant's assignment, she would have to compete for the GS-12 level and above from either her GS-11 Internal Revenue Agent position in Green Bay or her GS-11 Internal Revenue Agent position in Chicago.
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 note that the settlement agreement provided for Complainant to be reassigned from the Green Bay, Wisconsin post of duty to the Chicago, Illinois post of duty, effective July 10, 2016, to a GS-0512-11 Internal Revenue Agent position. The Agency has provided adequate support for its position that this reassignment occurred and Complainant is now in Chicago as a GS-0512-11 Internal Revenue Agent. Complainant asserts that the duties she has been assigned are different from the duties she expected to perform in Chicago. If Complainant had wanted to be guaranteed certain duties in her new position, she should have included this as part of the subject settlement agreement. See Jenkins-Nye v. General Serv. Admin., EEOC Appeal No. 01851903 (March 4, 1987). As such, we find no support for Complainant's claim that the Agency is currently in breach of the express terms of the settlement agreement.
We note that to the extent Complainant has asserted that she has been subjected to unlawful retaliation based on the duties assigned in the new position, we find that such a claim constitutes a new EEO complaint. The record indicates that Complainant had raised the matter with the Agency's EEO Office as a claim of breach. If she wants to pursue this claim as a claim of retaliation, she should continue to process her EEO complaint as a new claim rather than a claim of breach of the instant settlement agreement.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's determination that it did not breach the settlement agreement.
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's signature
Carlton M. Hadden, Director
Office of Federal Operations
January 12, 2017
__________________
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.
2 Complainant notified the Agency of the alleged breach in July 2016. After failing to receive a response, Complainant filed an appeal on August 12, 2016. In response to Complainant's appeal, the Agency submits a brief setting forth its assertion that it is in compliance with the agreement. Therefore, in the interest of judicial economy, we will view the document as the Agency's decision and accept the appeal.
3 The Settlement Agreement was signed on different dates by the relevant parties and the last signature was obtained on May 11, 2016.
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