0120161782
10-11-2016
Nakesha D.,1 Complainant, v. Eric K. Fanning, Secretary, Department of the Army, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Nakesha D.,1
Complainant,
v.
Eric K. Fanning,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120161782
Agency No. ARFTSAM15OCT04110
DECISION
Complainant timely appealed to this Commission from the Agency's April 20, 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's position of record was Secretary (OA) GS-0318-07 at the Agency's Joint Base San Antonio, Fort Sam Houston in San Antonio, Texas.
While maintaining her position of record, Complainant was informally detailed as a Project Manager (GS-09) in the Programs and Liabilities Branch, from May through October 2015. She requested a permanent transfer to the position multiple times; then learned that it would be filled by another employee. Believing that the Agency subjected her to unlawful discrimination, Complainant contacted an Agency EEO Counselor to initiate the EEO complaint process. Among other things, Complainant alleged she was passed over for the Program Manager position for a less qualified employee, excluded from competitive career position selection and subjected to a hostile work environment. On January 7, 2016, Complainant and the Agency entered into a settlement agreement ("the Agreement") to resolve the matter.
Provision Three of the Agreement provided, in pertinent part, that the Agency would:
3(b) Conduct a classification review (or "desk-side" audit) of [Complainant's] position to determine the correct position description, grade and series based on information provided by the Aggrieved and management. [S2] will be the management representative for the audit and will receive input from [S1] in its accomplishment;
3(c) Reassign [Complainant] to the Environmental Support Division, as a GS-0318-07 effective 11 Jan 16. She will remain assigned to that position until the completion of the classification review conducted in accordance with paragraph 3.b. Upon completion of the classification review, [Complainant] will be reassigned to the Program and Liabilities branch, under the supervision of S1. [Complainant's] grade, series and duties in the Program and Liabilities branch will be determined by the outcome of the classification review, if permitted by current law, regulations, and policies. [Complainant] will remain assigned to the Program and Liabilities branch under S1's or his successor's, supervision for no less than one year from the date of reassignment.
Complainant alleged that the Agency breached the Agreement, and requested that the Agency specifically implement its terms. Specifically, Complainant alleged that the Agency failed to:
1. Allow Complainant to provide information for purposes of determining the correct position description;
2. Conduct a classification review of Complainant's position as Program Manager; and
3. Return Complainant to the Program Manager position once the classification review (desk audit) was completed.
After ratifying the Agreement, Complainant was temporarily reassigned away from the alleged hostile work environment to the Environmental Support Division pending completion of the classification review. Other than the change in offices, Complainant's position of record remained Secretary (OA) GS-0318-07. The agency assigned a Human Resources Specialist (Classification) (GS-13) ("H1") from Agency Headquarters to conduct the classification review.
Complainant anticipated that once the classification review was complete, she would be provided with an entirely new position description ("PD") based on her duties during her informal detail as a Program Manager. However, H1, following standard procedure, based his classification review on Complainant's position of record, Secretary (OA) GS-0318-07, using the previous PD as a point of reference. Complainant was upset, believing there had been a miscommunication. She met with H1 and his supervisor and she would only discuss her Program Manager duties, not her Secretary (OA) duties. H1 cross referenced Complainant's PD of record with interviews of S1 and S2 to complete the classification review. Complainant's Program Manager duties were included "at the request of management." H1 noted that it was "unusual" to include duties from a temporary detail in another position as part of a classification review. H1 determined that Complainant's Project Manager duties were clerical and did not warrant a grade increase; and that Complainant's duties were consistent with a Secretary (OA).
Complainant was provided with an updated position description and reassigned to the position of Secretary (OA) GS-0318-07 in the Programs and Liabilities Branch effective March 6, 2016.
Upon review, the Agency concluded that it fully complied with the terms of 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).
As a preliminary matter, we note that Complainant's appellate brief and exhibits improperly reference statements allegedly made in the course of mediation. Confidentiality is considered one of the "Core Principles" of Alternative Dispute Resolution (ADR). "Parties who know that their ADR statements and information are kept confidential will feel free to be frank and forthcoming during the proceeding, without fear that such information may later be used against them." See EEOC Management Directive for 29 C.F.R. Part 1614., Ch. 3 � II.a.3 (Aug. 5. 2015) citing the Administrative Dispute Resolution Act of 1996 ("ADRA") codified as 5 U.S.C. �574. Because confidentiality is essential to the success of all ADR proceedings, the Commission will not consider any statements made during mediation in this decision.
Complainant's first two breach allegations are contradicted in the record by the Agency's affirmative evidence that it took Complainant's Project Manager duties into consideration for the classification review. Nothing in the Agreement specifies how much weight these temporary duties should receive in making the classification. It appears that the reason Complainant was not able to "freely provide her input" was due to proper efforts by the Agency to prevent disclosure of confidential statements made during the course of ADR. The record also indicates that Complainant had ample opportunity to contribute material for the classification review.
Complainant's third allegation of breach that she was not "returned" to the Program Manager position is inconsistent with the record. Complainant was not a Program Manager at the time the Agreement was signed. She does not dispute the Agency's assertion that she has never held the title of Program Manager, and that her position of record has been Secretary (OS) throughout her employment with the Agency. It is also undisputed that the she was on an "informal detail" at the time she performed Project Manager duties. Details, by definition, are temporary assignments. Throughout her argument, Complainant references October as the final month of her detail. The Agreement was signed the following January.
Complainant's remaining arguments ask us to interpret the intent of the parties with regard to whether Complainant was to be placed in a position of Program Manager or Secretary (OA) based on information outside the language of the Agreement. We find the Agreement lacks the necessary ambiguity to allow this. Both Provisions 3(b) and 3(c) expressly provide that Complainant's position within the Program and Liabilities Branch had yet to be determined. The Agreement is silent with regard to a specific title. To the extent that Complainant interpreted the Agreement as mandating that the Agency place her in a Project Manager position, such interpretation should have been reduced to writing as part of the settlement agreement, and in the absence of a writing cannot be enforced. See Jenkins-Nye v. General Serv. Admin., EEOC Appeal No. 019851903 (Mar. 4, 1987).
CONCLUSION
Accordingly, the Agency's decision finding no breach of the Agreement 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's signature
Carlton M. Hadden, Director
Office of Federal Operations
October 11, 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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